Constitutional Law I

2 December

• The end of Separation of Powers. Over the course, power has shifted from states to federal (Federalism issues). Then we saw that elections are a problem. Then we worry about the power of congress, the president, and now agencies.
• Control of agencies by the president. Three bits in the materials:
  1. The Nixon tapes. Presidents are mortal humans. And they don't always have much control over the agencies. Notice what happens to Nixon here-- he was an anti-trust lawyer, but Justice Dept had different opinions. He wanted the department to let the ITT case go, and not appeal. He says that lawyers don't make basic policy: they are not elected, the president is elected, and he makes these calls. In the end, the agency works around the president's direct orders, and the guy gets his judgeship in spite of explicit yelling to the contrary.
  2. The EDF case. A part of Reagan's platform was to bring the agency under control. A bill was introduced that agency budgets, or regulations with major economic impact, need to run through OMB (Office of Mgmt and Budget, appointed by president). Basically an attempt to centralize authority within the executive branch. It had 99 sponsors in the senate, and somehow still failed to pass. So Reagan issues an executive order to the same effect (executive order 12291). EPA was about to issue new regulations about Leaky Underground Storage Tanks (LUSTs): all tanks should be super-protected. The regulation is sent over to OMB for review. The court says that if congress sets a deadline, the agencies have to meet them, and it's no excuse to say that OMB is holding things up. Of course, congressional deadlines are generally missed. But anyway, this appears to restrict OMB's control over regulatory agencies: all they'd have to do is wait till the night before the deadline to sumbit the proposed regulation to OMB. If OMB has to meet everyone's deadlines, it's not going to be very powerful. So again, the president has limited control over the agencies.
  3. Saving Species. Interest groups can sue agencies to get a court to compel an agency to interpret a law a certain way (i.e., not the way the agency interprets it). It turns out that the agencies are so beset by lawsuits, for this reason, that they're not able to do their work. Some agencies get actually driven out of business by lawsuits: their entire budget is exhausted and they give up.
• OK, so what about control of agencies by congress? If agencies are going to be delegated a lot of power, does congress have any role in their policymaking power? Of course, congress could pass specific legislation, but it tends rather to delegate, even at the policy level. So what is left? Budget, of course. Oversight hearings (rather kangaroo-ish attempts to embarrass agencies that are out of line). Or sue them in the courts.
• Gorsach or Burford
  Anne Gorsach is the administrator of the EPA (she got married in the middle of the case and her name changed). When Reagan came into office, he said he'd pay more attention to the economy, and appointed her to be head of the EPA, and told her not to be a pure environmentalist, but to pay at least some attention to the economy.

  So congress says "we want all your files regarding the enforcement of superfund." EPA says no-- we are independent, and anyway you are just looking for scandal (which, it turns out, they found). Gorsach actually was conciliatory, but the administration instructed her to hang tough. Uh-oh. Contempt of congress is invoked.

  Before the case ever got to court (i.e., before there was any prosecution), Gorsach says that separation of power prevents them from citing a high administration of power for contempt.

  The court: political question. We are not getting into this until actual imprisonment is on the table. The two big strong branches need to settle this. They do, and congress gets the files.

  So this calls attention to the clash between the branches, and how the branches strive to expand their authority.

• Olson
  Theodore Olson was head of the Office Legal Counsel (OLC). That's the executive branch's office in the Justice Department. They look into constitutional issues like separation of powers. And Olsen was consulted by Reagan about the superfund files above. His counsel to Reagan was protect your files: they can't demand them (just as we can't demand congressional files).

  In his testimony before congress, Olson didn't exactly lie, but he wasn't completely open either. Not atypical, but anyway, after 2 years of investigation, Olson is found to have possibly perjured himself: a crime for which you can be prosecuted. Of course, the justice department has an interest in not prosecuting its own, so the house askes for a special prosecutor to be appointed.

  So congress can ask the AG to appoint a special prosecutor. The AG can refuse, but that's dicey, because congress will retaliate. There's a special 3-judge court tasked with appointing the prosecutor (for obvious reasons, AG can't appoint the prosecutor). The Chief Justice, Rhenquist, appoints those three judges. And Morrison eventually winds up in this seat.

  Olson mounts a frontal assault: the institution of special prosecutors is itself unconstitutional.

  SCOTUS opinion by Rhenquist, who comes from OLC. And Olson is the current head. So Rhenquist knows Olson personally, and knows the ins and outs of the issue very well. It's not wholly rare for justices not to recuse themselves in cases like this.

  Scalia dissents: he was head of OLC at one point, too. So it's unusual to see Scalia and Rhenquist disagree-- that's rare-- and here it's vigorous. Possibly because he didn't like Olson, and this job might be a springboard to SCOTUS. Rhenquist is non-confrontational, seeks compromise. Scalia is not a conciliatory person. And Olson is combative as well. So possible that's why they differ. Scalia and Rhenquist also have different views about the functon of OLC. Scalia: it's an executive branch agency whose task is to protect the president from the legislative branch. Rhenquist: our job is to seek compromise and get matters settled without a lot of ruffled feathers. And not that Olson here was trying to defend the president. Thirdly, Scalia and Rhenquist have differing backgrounds. Rhenquist was head of OLC during Watergate-- a time when the president was seen as running amok, and OLC was under extreme pressure from the president to defend the president against accusations of criminality. So maybe Rhenquist things an uncontrolled president, unconstrained by any sanctions, is a big threat to democracy. Scalia was head when Ford, who was very weak because of Watergate, was president. Here, congress was super-powerful, compared with the executive branch, because of all the shame. So maybe be Scalia sees this as congress usurping executive autonomy.

  So. Is she an inferior officer? The issue of being subject to the AG: she can only be removed for cause. Not clear how important a difference this is. But because the AG can fire her, she's inferior. She's also got limited duties and powers. Well, who isn't inferior? Everyone has some limitations.

  Also, note that the process is tainted a bit: the courts appoint the special prosecutor. How can they hear that case? O no prblm: those three judges are precluded from dealing with this particular case. That's sort of unpersuasive, because the chief justice who appointed those judges is now hearing the case and writing the opinion.

  Basically, the court says that this isn't a major enough issue to bring the executive branch to its knees. Citing Jackson in Steel Seizure: the branches are separate but inter-dependent. Famous oxymoron, that. Oh, by the way, Rhenquist clerked for Jackson, so maybe he is quoting himself.

  Side with the majority:

  • This is a new situation, unanticipated by the founders.
  • Hudson's Estate, Clinton v. Jones: we need to constraint the president.
  • Corruption is an evil of its own (see campaign finance: even restrictions of free speech might be tolerable to eliminate the appearance of corruption). The whole process will be undermined if the AG is trusted to do the prosecuting.
  • The executive branch is getting too strong: we need congress to have the power to threaten it with special prosecutors.
  Side against the majority:
  • Chadha: once power is delegated, you can't get it back
  • Separation of powers: you can't have congress investigating the executive branch. After AbScam (executive branch prosecuting congress), congress threatened to cut FBI funding. Branches need to deal with their own corruption issues.
  • The executive branch isn't too strong-- it's too weak, and we actually need to be watching out for congress. If we give them special prosecutorial power, we undermine the president.
  • And what a way to run things: criminalizing disagreements over policy. We don't like how EPA is doing stuff, so we spend 2 years stalking Olsen, and then hire prosecutors. The sole goal, with unlimited funds basically, is to find something for which to prosecute your victim. Ecch.
• Read through Anderson for tomorrow; exam coverage will end there.

3 December

• Summation of materials leading up to Anderson... they all relate to the same issue, and have the same policy concerns. Mostly they're familiar, as well. Specifically, control over agencies: we worry about them, because all the other controls against tyranny are slipping away, and so we start to focus on the agencies themselves, because they have so much delegated power, and so little control (no elections, etc.). So who controls the agencies? The president/governor, to some degree. The legislature, maybe, but they often choose not to exercise their capacity to do this. So that leaves the courts. To what degree can they supervise the agencies?
• Brown and Williamson
  FDA decides to regulate the sale of cigarettes to minors. Did it have the authority to do so? They have stated authority over drugs, and maybe nicotine is one of those. But, maybe you could argue that the D in FDA refers to other sorts of drugs. For decades, FDA had not exercised authority over cigarettes (under pressure from lobbyists, of course). Now they try, and lose, 5-4 in SCOTUS.

  The court chastises the agency: everybody knows that because of the strength of the cigarette lobby there will be no regulation of that market without congressional say-so. For the FDA to assert this authority would be in the direction of an agency run amok: everyone knows they're not supposed to do this.

  It's like Steel Seizure: the agencies (like the president, in that case) have to pay attention to congress. Dissent (Breyer): the ends justify the means-- people are dying, and this trivial dispute about agency power is holding things up. Also, government by agency is not per se such a bad thing-- why not give them authority: congress can always intervene, but probably they won't, and we can have the best of both worlds.

• MA v. EPA
  MA argues that EPA is not regulating greenhouse pollutants, and that it must. The EPA thinks it is better to wait.

  There are standing issues, but these are secondary.

  So, assuming there is standing, can the court order an agency to regulate? (opposite of FDA, basically). Majority: yes, congress says they must. Dissent: no-- we should defer to agencies, and they have given perfectly good reasons why they choose not to regulate.

• Note that in both these cases, the court doesn't feel much need to show deference to the agencies. Note, also, that the conservatives and liberals switch roles as to how much judicial review there should be. This indicates that the real issue isn't how much influence courts should have over agencies after all.
• TVA v. Hill
  A delicious case, in terms of the facts: fishes delay dam.

  Now, the government endagers species every day, but it promised not to in the rhetoric of the statute. A classic case for the plain meaning rule: we don't do common sense, we apply the law. Majority: you can't close the dam. That's the stated holding: the court will enforce legislative interpretation, even when it conflicts with agency interpretation. An unstated holding: hey, congress, stupid rhetorical preambles like this will make trouble, because we'll hold you to your grandstanding.

  And indeed, afterwards, congress passes legislation saying to finish the dam, but they didn't amend the endangered species act: this is essentially an individual exemption from the act.

  A great example of the plain meaning rule, and also how the plain meaning rule might mask something much deeper.

• Chevron and Vermont Yankee
  The stated general rule: courts should defer to agencies. They may review them (again, and again, and again, vis. EPA), but they should defer to them, usually.

  Chevron: unless the agency is arbitrary, capricious, manifestly contrary, ..., the courts will defer.

  Vermont Yankee: same thing, with respect to procedural requirements for agencies. Procedure is the handmaiden of substance: manipulation of procedure with a substantive goal in mind is the key to many litigation strategies. Defer to agency procedural analysis as well as substantive ones. Majority says that what the lower court did was Kafka-esque.

• FOMC v. Merril
  FOIA is another constraint on agencies. The idea is that courts can force the government to open their records. Open records laws are analogous to open meetings laws. But of course there are exceptions to all of these.

  There's an agency right now, incidentally, that has incredible power: Federal Reserve Board. Lots of other agencies have power and not much accountability. The Federal Reserve Board is way moreso: most people don't know who sits on the board (we know the chair). Federal Reserve, and FOMC within it, have the power to set monetary power. $6T in the last few weeks. Who controls it? Nobody-- it pretty much controls itself. There are 12 governers. 7 are appointed by the president, and those 7 appoint the other 5. Little congressional control. They are almost as independent as supreme court justices.

• NRDC note: cost-benefit is the economic method of analysis. Other disciplines have other approaches.
• Anderson
  Control over agencies as individual ajudicators of issues. The law school is an agency of the state. Church was a defendant in this case.

  Anderson had not told the full truth about his alcoholism on his application. And then he doesn't maintain all the grades he needs to.

  He's got two gripes: equal protection and the rehabilitation act. The former was without factual support, and it probably annoyed the court. But alcoholism is a disability under federal law.

  His gripe is not that he was below the standards-- his gripe is that 18/19 people below 77 were let back in. Those people all had some reason why they flunked out, and all but one got let back in. His reason is alcoholism, and his argument is that not readmitting him is on the basis of that problem.

  So the court is strongly deferring to the agency here.

  Ajudicating agencies often have this argument: we know much more about this problem and these circumstances than a jury does. The law school knows what the consequences of being forced to take people like Anderson back would be. Anderson, e.g., was on a scholarship, and those dollars could be better spent on some other student who wouldn't get a 76.92 average. The school also had all kinds of informal information (patterns of allegations of abusive behavior, etc.).

  Federalism suggests that the law school should prevail. Also agency morale.

  On the other hand, the law faculty has a lot of power, and aren't very accountable. Maybe a taste of judicial review, or even jury review, would be a good thing. Marbury: all Anderson is asking for is a right for his wrong. And the constitution says citizens can petition the government (in court presumably) for the redress of grievances. This was a big injury for him, and it was Kafka-esque: 9 separate hearings all leading to the same conclusion.

• Exam comments. usually 3 questions, 3 hours. Usually they are equal, but check to be sure. Word limits (generally 600 words/question), but these aren't a giant deal. Open book. 2 kinds of possible questions, one is wildly dominant:
  1. By far the favorite type. Here's a case (from the materials, generally, but maybe not). React to it. There are two flavors:
     1. You are a court. Write a judicial opinion (or dissent)
     2. You are a lawyer for one side (both sides are curved against themselves); maybe we can pick, maybe not
     The important thing is not the conclusion, but the explanation. Look at the text/statute: try to win from that (often it is silent or ambiguous). Look at precedent (this is huge, but don't cite things from outside the materials; imaginative citations are a big help, although there is such a thing as overcitation-- don't do string cites). Above all, though, say why America will be a better place: state the policy arguments. Have a main theme, or two or three. It's a good idea to mention at least one of the other side's legitimate arguments and diminish it. Don't be either too assertive (no swearing) or too bland: be persuasive. Make it easy to read: write well, use punctuation, paragraphs, etc. Subtitles and headings are helpful.
• Maybe try a couple of cases. Give yourself an hour. Make sure that every case is usable as precedent for you: know the debate in each of them.