1. how congress may try to control over presidential appointments a.

pass law over who may be appointed issues that arise3 main Qs what power does congress have to appoint executive officers themselves (no appointment power) i. Buckley v. Valeo: s.ct said congress has no power to appoint executive officials. If there is any appointment function that the officers engage in any kind of executive function (enforcement power, or judicial powers) then those commissioners must be appointed by the president. If congress appointed officers that simply reported to congress then its okay (such as the congressional budget office) What power does congress have the power to remove executive officers (no removal power) i. Bowsher v. Synar: 1. Facts: a balanced budget law passed by congress required conclusions about budget cuts to be made by the US comptroller general, who was removable by congress 2. Issue: may an officer who is removable by congress be given the job of executing a statute? 3. Ruling: congress always has the power to remove by impeachment but by congress saying it can remove by neglect of duty, inefficiency, malfeasance is too much. Congress is engaging in too much executive function (officers may worry that congress will remove them at any time, officers should be wary of the president) majority used a Formalistic approach label oriented 1. Dissent: we should be looking at a functional approachnot concerned about labels, but was congress really impeding on the presidents ability? There is no real threat to the separation of power. This is not thwarting the presidents power What power does congress have to restrict the presidents ability to remove officers? i. Myers (if an executive has purely executive functions such as a postmaster then Congress cannot pass laws restricting the president) ii. Humphreys Executory (FTC is independent quasi legislative and quasi judicial functions; in such cases Congress could limit the presidents removal power) 1. i & ii emphasize a FORMALISM approach: purely exec. v. Quasi legislative or quasi judicial/independent agency. If (i) its not okay for congress

iii. Morrison v. Olson 1. Facts: Congress passed law which provided for independent counsel, appointed by the judicial branch to investigate crimes by certain government officials. 2. Argument: 1. The independent counsel (Morrison) appointment was unconstitional itself because did not follow formal appointment procedures but court said she was a inferior officer and not a principal officer 2. Olson also argued that Congress did have the power to appoint the executive branch. Court however found limited power to provide for interbranch appointment 3. Olson did argue then was a violation of separation of powers. Court put forth a more functional approach, asking whether a removal provision interferes/thwart with the presidents exercise of executive power. Court found that the independent counsel did not presidents performance of his duties. One good cause restriction is not restricting. But see Free enterprise v. public accounting (two layers of restriction of removal is burdening the presidents removal power). Further in Olson, the legislative and judicial branches did not usurp executive functions, this is not separation of power violation. There was some limitation put on president but he retained enough control. b. pass law over the action of the executive

Fundamental right? Three prongs for how to slot it: 1. Is the asserted liberty interest deeply rooted in our nations history and traditions? 2. Looking at precedent (supreme courts other cases), what do other cases say? Is this a reasonable extension of precedent from other cases to say there is a fundamental or non-fundamental right? How does the court slot this decision? 3. Emerging awarenesses- from a living constitutionalist perspective, is there a solid, modern societal consensus for treating a fundamental value? Overview of Analysis: Substantive Due Process of Personal Liberties, a three step process: 1. Framing it (be reasonable, not too broad not too narrow see above) 2. Slotting the right (see above for the three prongs from Lawrence) 3. Once slotted, apply the appropriate level of scrutiny So if you slot it as a fundamdental right, apply struct scrutiny Is there a compelling government interest? Is it necessary? Are there alternatives? If you slot it as a nonfundamental right, apply deferential rational basis scrutiny Is there a legitimate interest? Is there a reasonable relationship? If it is in the grey zone, in between fundamental and nonfundamental The court does not have a rule it has stated for this But it does a case by case balance of the governments interest vs infringements that can create So for the exam, just apply intermediate scrutiny to those grey zone of rights Is there an important/substantial interest? Is there a substantialrelationship? Asking, is there an important and substantial interest, and is there a substantial relation between the law and achieving that interest?