Various assessments of Myers, Humphrey’s Executor, and Buckley.

t Analysis. Note that Myers, on the one hand, and Humphrey’s Executor and Wiener, on the other hand, point in opposite directions.

n Should there be a unitary executive? Should all branches of the government be subject to presidential control?

n Or is there sometimes a good reason to insulate certain officers from the president?

t After the decline of the non delegation doctrine, it is arguable that Humphrey’s Executor makes things worse: not only can’t agency rulemaking decisions (which have the force of law) be laid at the feet of Congress; they can’t be laid at the feet of the President, either. Humphrey’s Executor creates a “headless fourth branch” of government subject to the control of none of the three constitutionally recognized branches. The result is unchecked bureaucratic power.

n Together with commerce power, does this mean that the U.S. is run by an oligarchy that is immune to democratic control? Even if the answer is yes, should we care if the job of regulation is being performed well? If job of regulation is being done badly, can Congress do anything about that?

n There is no constitutional basis for administrative agencies exercising power without presidential supervision. Humphrey’s Executor should be overruled.

t Humphrey’s Executor was a necessary response to the growth of administrative agencies and the grant of legislative and judicial functions to those agencies.

n If those powers were to be exercised by the President, system of separation of powerswould be skewed in favor of executive branch. Thus, this case was a necessary quid pro quo for downfall of nondelegation doctrine.

n Devices such as legislative veto and congressional participation in appointment of administrative officers should therefore be upheld as modern efforts to maintain constitutional balance in context of the administrative state.

t Myers and Buckley are based on a formalistic effort to catalogue those functions that are necessarily “executive” in character.

n Any such categorization is bound to be arbitrary.

n Moreover, Congress is under no obligation to create subordinate bodies in the first place, so it follows that when Congress chooses to create these bodies, it is under no obligation to make their members subject to presidential control.

Date: 2015-01-02; view: 674