exeucitve power- II of the constitution v Public Accounting freestanding component of Appointments clause provides that an inferior Oversight Board: the executive branch not officer may be appointed finding that the SEC subordinate to or contained by a head of a department. commissioners are within any other such Under Freytag v Cir a head the “head of a component. The several of a department was department.” commissioners of such defined as a part or component, not the chairmen, division of the executive are the “head of this government such as the department,” department of state, which is expressly created and given the name of a department by congress. Recently, however, the court has revisited it’s definition to include freestanding agencies- Separation of powers- Executive interference- if New York v Reily: exeucitve power- the executive interferes to finding that the EPA Supervise an extent that the agency is was not improperly not relying on its expertise, relying on the the court canot defer) opinion of the President’s Council on Competitiveness Separation of Powers - Removal power is arguably Myers: the president Removal one of the most important has inherent power powers held by the to remove executive President. officials, invalidating a statutory provision requiring senate consent for the removal of a postmaster from office (but see Humphreys executor) Separation of Powers - Humphreys Executor: Removal congress may restrict presidential removal powers when the official is legislative, Reviewing Agency The reasons requirement: Allen v Barnhart: Harmless error may occur Decisions Agency decisions can only cautioning against when an error is so minor or be sustained on the basis of harmless error technical that it does not the reasons given by the because it may undermine confidence in the agency. The court may not violate the reasons determination of the case. uphold the agency’s requirement. However, court should be
exeucitve power- Appointments clause II of the constitution provides that an inferior officer may be appointed by a head of a department. Under Freytag v Cir a head of a department was defined as a part or division of the executive government such as the department of state, which is expressly created and given the name of a department by congress. Recently, however, the court has revisited it’s definition to include freestanding agencies- v Public Accounting Oversight Board: finding that the SEC commissioners are the “head of a department.” freestanding component of the executive branch not subordinate to or contained within any other such component. The several commissioners of such component, not the chairmen, are the “head of this department,” Separation of powers- exeucitve power- Supervise Executive interference- if the executive interferes to an extent that the agency is not relying on its expertise, the court canot defer) New York v Reily: finding that the EPA was not improperly relying on the opinion of the President’s Council on Competitiveness Separation of Powers - Removal Removal power is arguably one of the most important powers held by the President. Myers: the president has inherent power to remove executive officials, invalidating a statutory provision requiring senate consent for the removal of a postmaster from office (but see Humphreys executor) Separation of Powers - Removal Humphreys Executor: congress may restrict presidential removal powers when the official is Reviewing Agency Decisions The reasons requirement: Agency decisions can only be sustained on the basis of the reasons given by the agency. The court may not uphold the agency’s Allen v Barnhart: cautioning against harmless error because it may violate the reasons requirement. Harmless error may occur when an error is so minor or technical that it does not undermine confidence in the determination of the case. However, court should be legislative,
Administrative%20Law%20-%20Glicksman%20-%20Fall%202010.docx