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Published online by Cambridge University Press: 24 January 2025
This is the fourth in the annual Menzies Lecture series. These lectures were delivered at the Australian National University in October 1988.
1 Strauss, P, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” (1984) 84 Columbia L Rev 573CrossRefGoogle Scholar. I acknowledge my substantial reliance on Professor Strauss's probing analysis but at the same time absolve him of any errors of translation or application.
2 For discussion of these efforts, see Mashaw, J and Merrill, R, Administrative Law: The American Public Law System (1985), 143-155Google Scholar, 160-163.
3 See Bruff, H, “Presidential Power and Administrative Rulemaking” (1977) 88 Yale L J 451CrossRefGoogle Scholar; Strauss, P and Sunstein, C, “The Role of the President and 0MB in Informal Rulemaking” (1986) 38 Admin L Rev 181.Google Scholar
4 US Constitution, Arts I, II, and III.
5 P Strauss, supra n I, 597.
6 US Constitution, Art II, § I, cl I.
7 J Mashaw and R Merrill, supra n 2, 110 ff.
8 P Strauss, supra n I, 598.
9 US Constitution, Art II, § 2, cl I.
10 P Strauss, supra n 1, 599-600, and sources cited therein.
11 Ibid. 602.
12 For examples of recent scholarly discussion of the general topic and of the validity of specific experiments in governmental structure, see “Symposium: The Independence of the Independent Agencies” [1988] Duke LJ215; “A Symposium on 'The Uneasy Constitutional Status of the Administrative Agencies'” (1987) 36 American UL Rev 277.
13 P Strauss, supra n I, 598.
14 Ibid 583-584.
15 Ibid 584.
16 Ibid 585.
17 Eg,G Gunther, Constitutional Law (11th ed 1985) 337-362, 377-382; E Corwin, The President:Office and Powers (4th ed 1957).
18 Kendall v United States37 US (12 Pet) 524 (1838);United States v Perkins116 US 483,700(1886); Wayman v Southam 23 US (Wheat) 1 (1825).
19 US Constitution, Art I,§ I, cl 2:
… [H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Counsels, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they may think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
20 On the President's personnel powers generally, see Burkoff, J, “Appointment and Removal under the Federal Constitution: The Impact of Buckley v Valeo” (1976) 22 Wayne L Rev 1335Google Scholar.
21 272 us 52 (1926).
22 295 us 602 (1935).
23 P Strauss, supra n l, 609-610.
24 Federal Trade Commission Act, 38 Stat 717, 15 USC § 41.
25 295 us 602,625, 628-629 (1935).
26 lbid629.
27 Ibid 628. The Court recognised that the distinction it was drawing could be elusive, observing that “to the extent that, between the decision in the Myerscase, which sustained the unrestrictable power of the President to remove purely executive officers, and our present decisions that such power does not extend to an officer such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.”
28 Eg,J Burkoff, supra n 20; P Strauss, supran 1; and Raffel, B, “Presidential Removal Power: The Role of the Supreme Court” (1959) 13 Miama L Rev 69Google Scholar. For trenchant criticisms of the Humphrey decision, see Currie, D, “The Distribution of Powers after Bowsher” [1986] Sup Ct Rev 19Google Scholar; Miller, G, “Independent Agencies” [1986] Sup Ct Rev 41Google Scholar.
29 See J Mashaw and R Merrill, supra n 2, 64-68.Humphrey's Executor was followed two decades later by Weiner v United States, 357 US 349 (1958), where the Court overturned President Eisenhower's attempt to remove a member of the War Claims Commission, a collegial body established by Congress to adjudicate claims against seized assets of the World War II Axis Powers. The statute creating the Commission specified terms of service, but said nothin3 about Presidential removal with or without “cause.” A majority of the Court, speaking through Frankfurter J, concluded that the functions assigned the Commission required an independence that was inconsistent with vulnerability to plenary Presidential discipline.
30 424 US 1 (1976).
31 86 Stat 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat 1263, 2 USC§ 431 ff.
32 See 424 US 1, 134 (1976).
33 The President was empowered to appoint the remaining two voting members, subject to concurrence by both houses.
34 The legislation nominally provided for eight members, but two — the Secretary of the Senate and the Clerk of the House, neither of whom is an elected member of Congress — were to be ex officio members without the power to vote. See 424 US 1, 113 (1976).
35 Supra n 19.
36 424 US 1, 141 (1976).
37 Ibid 121.
38 Ibid 139-140.
39 “While the President may not insist that such functions be delegated to an appointee of his removable at will … none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public , law to allow it to be performed by the present Commission”: ibid 141.
40 462 us 919 (1983).
41 Immigration and Nationality Act, 66 Stat 216, 8 USC § 1254(c).
42 462 us 919, 927 (1983).
43 Ibid928.
44 This accurately reflected the announced position of the Department of Justice, at that time and for many years previous, that the legislative veto was unconstitutional. See sources cited at n 49 infra.
45 For a discussion of the case by counsel for the Congress, see M Davidson, “Reflections from the Losing Side” (1983) 7 Regulation, July/ August 23. For a contrasting view, by a US Assistant District Attorney General who was later to become personally embroiled in a major separation of powers controversy, see T Olson, “Restoring the Separation of Powers” (1983) 7 Regulation, July/ August 19.
46 For an illustrative survey, see Miller, A and Knapp, G, “The Congressional Veto: Preserving the Constitutional Framework” (1977) 52 Indiana L Rev 367Google Scholar. Justice White's dissenting opinion in the Chadha case contains an appendix listing some of the programs over which Congress had attempted to maintain a modicum of control through the creation of a veto, all of which he believed would be nullified by the Court's ruling.
For an interesting empirical study of the operation of legislative veto provisions, see Bruff, H and Gellhorn, E, “Congressional Control of Administrative Regulation: A Study of Legislative Vetos” (1977) 90 Harv L Rev 1369CrossRefGoogle Scholar.
47 See the dissenting opinion of White J, 462 US 919, 968-974 (1983).
48 Eg, Javits, J and Klein, G, “Congressional Oversight and the Legislative Veto: A Constitutional Analysis” (1977) 52 NYU L Rev 455 (1977)Google Scholar; Abourezk, J, “Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives” (1977) 52 Indiana L Rev 323Google Scholar; Pearson, J, “Oversight: A Vital Yet Neglected Congressional Function” (1975) 23 Kansas L Rev 277Google Scholar.
49 Eg, Dixon, R, “The Congressional Veto and Separation of Powers: The Executive on a Leash?” (1978) 56 North Carolina L Rev 423Google Scholar (Mr. Dixon was Assistant Attorney General in the Nixon and Ford Administrations); A Scalia, “The Legislative Veto: A False Remedy for Systems Overload” (1979) 3 Regulation November/December 19 (Mr., now Justice, Scalia, served as Assistant Attorney General during the Ford Administration). See also (1977) 43 Opinions of the Attorney General No 10, 2.
50 Strauss, P, “Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision” [1983] Duke LJ 789CrossRefGoogle Scholar.
51 Martin, D, “The Legislative Veto and the Responsible Exercise of Congressional Power” (1982) 68 Virginia L Rev 253CrossRefGoogle Scholar.
52 462 us 919, 960-962 (1983).
53 Within a matterr of months, the Court laid to rest any doubts about the breadth of its Chadha ruling by declining review of two District of Columbia Circuit Court of Appeals decisions invalidating veto provisions in the Natural Gas Act and the Federal Trade Commission Act. See Process Gas Consumers Group v Consumers Energy Council of America 463 US 1216 (1983) (denying review of 673 F2d 425); United States Senate v Federal Trade Comm'n 463 US 1216 (1983) (denying review of 691 F2d 575).
54 See P Strauss, supra n l, 637-639. See also the dissenting opinion of White J, 462 US 919, 974 (1983).
55 P Strauss, supra n l, 635; P Strauss, “Formal and Functional Approaches to Separation of Powers Questions: A Foolish Inconsistency?” (1987) 72 Cornell L Rev 488; D Elliott, “INS v Chadha: The Administrative Constitution, the Constitution, and the Legislative Veto” [1983] Sup Ct Rev 125.
56 462 us 919, 951 (1983).
57 Ibid 952.
58 Id. According to the Chief Justice, the House's veto altered the 'rights' of the Attorney General and other officials of the executive branch as well.
59 Ibid 955.
60 US Constitution, Art I, § 7, cl 3, discussed in the majority opinion at 462 US 919, 946-948(1983).
61 US Constitution, Art I, § 1; § 7, cl 2; § 7, cl 3, discussed at 462 US 919, 948-951 (1983).
62 Powell J concurred with the narrow theory that the Nationality Act's veto provision allowed either house of Congress to encroach upon the courts' jurisdiction to adjudicate claims that an administrator has erroneously administered the law. See 462 US 919, 960 ff (1983).
63 Ibid 967 ff.
64 “[T]he Court … sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a legislative veto”: ibid 967.
65 Ibid.
66 Id.
67 Ibid 962. See alsoibid 972-973, 974, 978.
68 Ibid 984 (quoting the dissenting opinion of Jackson J in Federal Trade Commission v Ruberoid Co 343 US 470,487 (1952).
69 Ibid 1002. At n 15 of his opinion, (462 US 919, 978 (1983)), White J acknowledges serious doubts about the validity of veto provisions that purport to allow a single committee of one house to reject administrative decisions.
70 See P Strauss, supra n 50.
71 Ticor Title Insurance Co v Federal Trade Commission, 814 F2d 731 (1987).
72 106 set 3181 (1986).
73 Pub L 99-177, 2 USC § 901. The colloquial title comes from the names of Senator Philip Gramm (Rep-Texas) and Senator Warren Rudman (Rep-New Hampshire), who were the Act's chief authors. To theirs was also often added the name of Senator Fritz Hollings (Dem-South Carolina), whose endorsement was instrumental in securing the support of many Senate and House Democrats.
74 31 USC § 703.
75 There were other parties as well, including members of a union of government employees whose automatic cost-of-living wage adjustments were curtailed by other provisions of the Act. Because of their clear-cut stake, though not so obviously a stake in the controversy over the mechanism for effecting annual expenditure reductions, the Court did not rule on the standing of Congressman Synar and other members of the House who joined his lawsuit: 106 SCt 3181, 3186 (1986).
76 Though he signed the legislation, President Reagan issued a statement expressing his belief that the role assigned to the Comptroller General rendered its primary budget reduction procedure unconstitutional. Statement of President Reagan on Signing HJ Res 372 into Law, 21 Weekly Compilation of Presidential Documents (1985), 1491.
The Solicitor General's appearance on behalf of “the United States” drew a barbed reference from Justice White, who dissented. He recharacterized the Solicitor General's role as “more properly” representative of the “Executive departments.” 106 SCt 3181, 3602 n 2 (1986).
77 Strauss, P, “Formal and Functional Approaches to Separation-of-Powers Questions: A Foolish Inconsistency?” (1987) 72 Cornell L Rev 488, 496Google Scholar.
78 31 USC § 703(e) provides that the Comptroller is to be nominated by the President for a single term of 15 years from among three candidates recommended by the Speaker of the House of Representatives and the President pro term of the Senate. It goes on to provide that the Comptroller may be removed by impeachment or by Joint Resolution — requiring action by the President and the concurrence of both houses of Congress — on account of disability, inefficiency, neglect of duty, malfeasance, or conviction of a felony connoting moral turpitude. Though a Joint Resolution must be presented to the President for his assent, it may be carried over his veto by votes of two-thirds of each house. Accordingly, the Chief Justice concluded, it was appropriate to view the statute as allowing removal by Congress alone. So far as the record reveals, no attempt has ever been made to remove a Comptroller General.
79 Synar v United States 626 FSupp 1374 (1986).
80 106 SCt 3181, 3192 (1986).
81 The Chief Justice did not appear troubled by the 1921 law's restriction of the President's choices to three candidates recommended by leaders of Congress. Perhaps this was because he found the statute's restricted grounds for removal and the role it ac.corded Congress in the process more offensive.
82 106 SCt 3181, 31911 (1986).
83 Ibid 3187, 3188. Essentially agreeing with this conclusion, Blackmun J arrived at a different result. He would not have struck down the budget-reduction mechanism of Gramm-Rudman but instead invalidated the removal provision of the older statute creating the Office of the Comptroller General: ibid 3215, 3218-3220. The Chief Justice discussed but rejected this option. Because Congress had, in Gramm-Rudman itself, provided for an alternative mechanism (requiring passage of a Joint Resolution with presentment to the President) in case the role assigned to the Comptroller General was declared unconstitutional, the Chief Justice concluded that the legislature had left no doubt what it wished to happen if that result occurred.
84 Ibid 3194.
85 Ibid 3194-3195. Comparing the removal provisions in the 1921 statute creating the Comptroller's office with the protections accorded members of the Federal Trade Commission, Stevens J asserted that Humphrey's Executor demonstrated that “the prescription of 'dereliction-of-duty' standards does not impair the independence of the official subject to such standards”: ibid 3195-3196.
86 Ibid 3200.
87 Ibid 3194. The Act “assigns to the Comptroller General the duty to make policy decisions that have the force of law”: ibid 3203.
88 Ibid 3205. Stevens J argued that Congress has betrayed its own understanding of the role initially assigned the Comptroller General by including in the Act a so-called 'fallback' procedure in case its reliance on the Comptroller were declared unconstitutional. Under this procedure, final budget reductions were to be determined through Joint Resolution, thus requiring the concurrence of both houses and presentment to the President.
89 See D Currie, supra n 28; G Miller, supra n 28. See also Duke L J “Symposium” supra n 12.
90 106 SCt 3181, 3188 (1986) n 4: “Appellants are wide of the mark in arguing that an affirmance in this case requires casting doubt on the status of 'independent' agencies because no issues involving such agencies are presented here. The statutes establishing such agencies typically specify either that the agency members are removable by the President for specified causes… or else do not specify removal procedures. … This case involves nothing like these statutes, but rather a statute that provides for direct Congressional involvement over the decision to remove the Comptroller General”.
91 Ibid 3202-3204.
92 Ibid 3205.
93 Ibid 3213-3214.
94 Ibid 3207. At this point White J took note of, and agreed with, the majority's unwillingness to accept the Solicitor General's argument that 'executive' powers may only be exercised by officers who are removable at will by the President.
95 Cf ibid 3207-3208.
96 Ibid 3214-3215.
97 106 SCt 3245 (1986).
98 17 CFR § 12.23 (1983).
99 Commodity Exchange Act § 14, 7 USC § 18 (1986).
100 The Court found that the Commission's rule was within its delegated power; thus it could not avoid deciding the underlying constitutional question whether Congress could confer such jurisdiction on a regulatory body.
101 Art III, § 1 of the US Constitution provides:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their services, a Compensation, which shall not be diminished during their Continuance in Office.
102 458 US 50 (1982).
103 Bankruptcy Act of 1978, 92 Stat 2549 ff, § 241(a), 28 USC § 1471.
104 Brennan J authored the Court's chief opinion, which had support from Marshall, Blackmun, and Stevens JJ. Rehnquist J joined by O'Connor J, wrote separately in favour of the result. White J authored a dissent, in which Powell J and Burger CJ joined.
105 For an insightful discussion of the Northern Pipe Line case, and its progenitors, see Redish, M, “Legislative Courts, Administrative Agencies, and the Northern Pipe Line Decision” [1983] Duke LJ 197CrossRefGoogle Scholar.
106 Thomas v Union Carbide Agricultural Products Co 473 US 568 (1985).
107 Federal Insecticide, Rodenticide, and Fungicide Act, 61 Stat 163, 7 USC § 136, 136a(c). This statute (FIFRA) allows the agency responsible for approving new pesticides, the US Environmental Protection Agency, to consider the data supporting the safety of A's product in evaluating B's application to market a like product. This arrangement makes obvious sense if B's product contains the same active pesticide ingredient as A's. But allowing EPA to rely on A's data saves B both time and money, and thus deprives A of a marketing advantage that it would enjoy if it could withhold permission to consider its data, data in which it may have invested heavily. Thus Congress has thought it appropriate to recognise a sort of 'property' interest in such data, defined (at least in part) by a statutory right to fair compensation for its use. But the statute does not specify how such compensation is to be computed, and disputes between competing pesticide manufacturers are common.
108 O'Connor J wrote the Court's opinion. Brennan J, with Marshall and Blackmun JJ, wrote separately, concurring in the judgment, as did Stevens J.
109 473 US 568, 589 (1985).
110 106 SCt 3245, 3256 (1986) (citing her own opinion in Thomas 413 US 568, 587 (1985)).
111 106 SCt 3245, 3257 (1986). O'Connor J had previously laid to rest any suggestion that Schor himself had been prejudiced by invocation of the CTFC's jurisdiction, pointing out that the Commission's rule merely provided an alternative, not an exclusive, tribunal for the adjudication of counterclaims, and stressing that it was Schor himself who had first insisted that the disputes be consolidated in the administrative proceeding he had initiated.
112 Ibid 3258.
113 O'Connor J stressed the similarity between the CTFC's authority to adjudicate disputes over the violation of its rules and the comparable powers of other regulatory agencies, suggesting that it was only the additional sliver of jurisdiction claimed by the Commission — but not to the exclusion of the courts — that presented any difficulty.
114 106 SCt 3245, 3258-3260 (1986).
115 P Strauss, supra n 77, 510. O'Connor J appeared to have no difficulty reconciling the two cases:
Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a co-ordinate branch. Indeed, the separation of powers question presented in this case is whether Congress impermissibly undermined, without appreciable expansion of its own power, the role of the Judicial Branch. In any case, we have, consistent with Bowsher, looked to a number of factors in evaluating the extent to which the congressional scheme endangers separation of powers principles under the circumstances presented, but have found no genuim, threat to those principles to be present in this case: 106 SCt 3245, 3261.
116 SCt 2597 (1988).
117 28 use §§ 49, 591 ff.
118 For discussion of the origins and terms of the Act, see J Mashaw and R Merrill, supra n 2, 60-64.
119 Ibid 125-128.
120 President Reagan, in his final weeks in office, vetoed legislation that would have tightened the Act's strictures on post-employment conduct and made all of its requirements applicable to the legislative branch. Though he endorsed broadening the Act's coverage, Reagan expressed concern that tightening other provisions would make it more difficult for executive branch agencies to retain and recruit employees: Memorandum of Disapproval for the Post-Employment Restrictions Act 1988, (1988) 24 Weekly Compilation of Presidential Documents 1562.
121 The operative sections of the Act are to be found at 28 USC § 49, and in Title VI, §§ 591-599. My summary of their operation closely tracks that of Rehnquist in CJ in his opinion for the Court.
122 Those appointed to serve as independent counsels are invariably attorneys from the private sector, though many have had prior experience as federal prosecutors. The two who successively oversaw the Watergate investigation, Archibald Cox and Leon Jaworski, though obviously not appointed under the terms of the 1978 Act, rank among the most distinguished American lawyers, and this tradition of generally appointing figures of prominent reputation has continued.
123 This language was intended to avoid the uncertainty surrounding the tenure of the first modern independent counsel, Archibald Cox, who was appointed by then-Attorney General Elliot Richardson to direct the Watergate investigation. See Nader v Bork 366 FSupp l04 (1973). See also Kramer, V and Smith, L, “The Special Prosecutor Act: Proposals for 1983” (1982) 66 Minnesota L Rev 963Google Scholar.
124 In re Sealed Case 838 F2d 476 (1988).
125 The three were Edward Levi, Attorney General under President Ford; Griffin Bell, Attorney General under President Carter; and William French Smith, President Reagan's first Attorney General and the man responsible for Mr Olson's appointment.
126 As noted, supra, he had himself served as Assistant Attorney General, and he joined the majority opinions in both Chadha and Bowsher.
127 l08 SCt 2597, 2622-2641 (1988).
128 Ibid 2622.
129 Ibid2608-2609.
130 Ibid2609-2611.
131 Ibid2612-2613.
132 Ibid2614-2615.
133 Ibid2617.
134 Id.
135 Ibid 2618.
136 Id.
137 Ibid 2619.
138 Id.
139 Ibid 2620-2621.
140 Ibid 2622.
141 Ibid 2625.
142 Id.
143 Shenon, P, “Special Prosecutor Drops E.P.A. Case Without Indictment” New York TimesAugust 27 1988, lGoogle Scholar; McAllister, B and Marcus, R, “Olson's Indictment Won't Be Sought” Washington PostAugust 27 1988Google Scholar, Al.
144 Eg D Currie, supra n 28; G Miller, supra n 28. For an emphatically contrary view, see Robinson, G, “Independent Agencies: Form and Substance in Executive Prerogative” [1988] Duke L J 238, 240-241Google Scholar.
145 See Wechsler, H, “The Political Safeguards of Federalism” (1954) 61 Columbia L RevGoogle Scholar.