Constitutional Law Question Forum

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[goodolgil]

Memory is a little fuzzy on all this, but in principle, no. Consider Myers v. U.S. (provision of law requiring President to obtain Senatorial consent before removing postmasters held unconstitutional because president is the sole executive). So generally, Congress can't interfere with "executive acts."

After this comes all the issues with the non-delegation doctrine and administrative agencies

[YourCaptain]

no bro check you prosecutorial discretion

[ak362]

So long as the Court doesn't decide M.B.Z. on political question grounds and gets to the heart of the matter, then the Court might actually answer this question with more definite precision. See the D.C. Circuit's opinion below in Zivotofsky v. Sec'y of State where Judge Edwards essentially concludes in a concurrence that Congress can't do what you've proposed.

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[ak362]

So long as the Court doesn't decide M.B.Z. on political question grounds and gets to the heart of the matter, then the Court might actually answer this question with more definite precision. See the D.C. Circuit's opinion below in Zivotofsky v. Sec'y of State where Judge Edwards essentially concludes in a concurrence that Congress can't do what you've proposed.

As above, wouldn't Zivotofsky deal with the unique an unreviewable power the Executive branch has in dealing with foreign sovereigns--Clause 2--rather than the power to faithfully execute the laws--Clause 3?

A law that restricted the Executive's power to deal with foreign nations would be an unconstitutional power, and obviously would not be enforced. However, a power that merely regulated how the Executive was to faithfully execute the law, would simply be another law for the Executive to faithfully execute.

I think if the Court (as the D.C. Circuit below did in its majority opinion) couches this as an issue of the unreviewability of the Executive's treatment of foreign states (ergo, a political question), then I think you're correct. However, if they get to the second question of whether there is an unconstitutional infringement, and they somehow decide that it was within Congress's constitutional discretion to pass legislation requiring passports to recognize Jerusalem as a part of the State of Israel, then I think you get into the territory of the Take Care Clause. I don't think it's so farfetched to think that the Court will come out this way -- why else would they grant certiorari on an otherwise routine political question? I doubt they'd do so just so they can reiterate what Judge Edwards had to say in his concurrence.

Though from what little I remember about Con Law, I remember the Take Care Clause only appearing in Lujan or some godawful standing case. Not to say that it doesn't appear elsewhere in other cases, but it's the only case from con law that I can remember invoking that rare nugget from Article II.

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[AreJay711]

The Executive Branch's Article II power is: to "take Care that the Laws be faithfully executed." Can Congress pass legislation requiring the Executive Branch to act in a particular manner without violating separation of powers? Most specifically, can Congress mandate a particular methodology when executing the laws?

In other words, could it pass a bill that says, "In faithfully executing any law passed by this legislature, the Executive Branch must do X"?

As a policy matter this seems like a generally bad idea, but I am just interested in the constitutionality of it.

It is just part of the law then. I'm almost positive that this is fine. It would be like saying that "Carbon dioxide emissions can't be above X. There shall be inspectors sent out to check the emissions level." Congress can be specific with the law as they want.

[stab master arson]

Q: Can Congress mandate a particular method the Executive Branch must follow in executing the law?
A: Sort of. The court would look at whether the statute increases the power of one branch at the expense of another. if yes, then it's unconstitutional. If no, then it's OK. See Bowsher v. Synar and Morrison v. Olson. See also, INS v. Chadha.

My B+ in Administrative Law a year ago says my analysis is beyond reproach.