2. Congressional Interference with Presidential Prerogatives

A.  The Legislative Veto

• what act of Congress is being challenged, and what was its purpose?
• was the act as such within the substantive powers of Congress?
• if not within the substantive powers of Congress, why not? (Powell)
• assuming it was within Congress's powers, did they follow proper procedures in undertaking the action? (Burger)
• does Art. I s. 7 clearly say what Burger says it says?
• does his analysis apply to the following:
• "two-house veto", requiring majority vote of both houses to override the executive action?
• "two-house approval", requiring a majority vote of both houses to allow the executive action to take effect?
• if the delegation to the Attorney General of power to suspend deportation is valid, why is the delegation to the House of power to override that decision invalid? (White)
• are there any exceptions to its procedural requirements?
• assuming the act to be invalid for substantive or procedural reasons, is the entire statute authorizing the act invalid, or only the specific authorizing provision? (compare Burger with Rehnquist)

• May Congress provide for the appointment of judges to the Commission?
• what function will the Commission perform? Is it a legislative or executive function? A judicial function?
• if not a judicial function, why is it not impermissible "non-judicial business" for the courts?
 
B. Appointment, Discharge, and Supervision of "Officers of the United States"

• what congressional action is being challenged and what was its purpose?
• is the Independent Counsel an "Officer of the United States" (Art. II s. 2)?
• if so, is she an "inferior officer" whose appointment can be vested by Congress in, for example, the courts?
• how is "inferiority" defined? To whom is the independent counsel "inferior"?
• must such appointments always be made by superior officers responsible for functions to which the "inferior" officer's duties relate?
• is the appointment of a prosecutor a "nonjudicial function" which cannot be imposed on the courts (Art. III)?
• is the prosecutorial function so quintessentially "executive" that it cannot be controlled by a non-executive (e.g., judicial?) officer? (Scalia)

• U.S. v. Myers (1926). May Congress require Senate approval of presidential dismissal of postmasters, whose appointments required Senate confirmation?
• Humphrey's Executor v. United States (1935). May Congress impose for-cause requirements on dismissing members of the Federal Trade Commission?
• Wiener v. U.S. (1958). May the President dismiss a member of the War Claims Commission, which adjudicates claims against former enemy countries arising out of World War II, absent congressional provision for such dismissal?
• Buckley v. Valeo (1976). May Congress provide that members of the Federal Election Commission be appointed by the House and Senate respectively?
• Bowsher v. Synar (1986). May Congress assign to an officer, whose removal requires a joint resolution of Congress, a crucial role in administering the deficit control process prescribed by the Gramm-Rudman Act?

Metropolitan Washington Airports Authority (1991): may Congress require, as a condition of transferring control of 2 federally-owned airports to a bi-state authority established by Maryland and Virginia, that the bi-state agreement create a "Review Board" composed of Members of Congress "in their individual capacities", with veto power over certain fundamental decisions of the authority?