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Executive Removal Powers
The President’s power to remove officers is granted by the Article II of the Constitution where it is stated that the President can “nominate, and by and with the Advice and Consent of the Senate, [to] appoint… Officers of the United States” (Bradley & Morrison, 2012, p. 476). However, the authors of the study also point out that the Constitution does not provide any express mechanism for the removal of officers other than impeachment (Bradley & Morrison, 2012).
Nevertheless, there are several examples of what circumstances are considered as valid when removing an officer. In Bowsher v. Synar, 478 U.S. 714, the officer was removed due to inefficiency and neglect of duty (Bradley & Morrison, 2012). The President’s power to remove officers from a federal executive agency is valid if the officer’s work is inefficient or they neglect their duties. At the same time, this statement did not apply to the independent federal agencies, because the President’s power to remove officers from independent agencies was restricted by the Constitution (Bradley & Morrison, 2012). However, in the case, Myers v. the United States, 272 U.S. 52, the Court agreed that the President had the power to remove the officer, although statutory protections stated otherwise (Bradley & Morrison, 2012). Although the Court states that the Congress is not in the power of removing an officer, the Congress still has the power to “abolish federal offices it had previously created by statute, with the effect of removing the incumbent” (Bradley & Morrison, 2012, p. 480). I believe that inefficiency and neglect of duties are valid reasons for removal only if they are proven to be true. Nevertheless, I also think that Congress should not be allowed to abolish the offices since it automatically leads to the removal of officers.
Judicial Review of Administrative Agencies
The individuals have the right to seek judicial review of a decision made by an agency. The principles of such review are expressed in the Federal Administrative Procedure Act (APA). The following actions can be seen as unlawful: capricious acts, an abuse of discretion, contrary to constitutional right, power, privilege, “without observance of procedure required by law”, etc. (Cole, 2016, p. 9). These reviews allow the state to ensure the separation of power, e.g. to detect and address violations in the legislative and executive branches in case if there are any exceeds in their authority (Cole, 2016). Therefore, none of the branches has enough power to be seen as the “core branch”, which automatically ensures that this power will not be abused by some representatives or members of the authorities.
There are cases when judicial review of agency action is precluded. For example, Cole (2016) points out that the main reason why judicial review is not available is “when the agency’s action is legally committed to an agency’s discretion” (p. 11). Moreover, judicial review can also be precluded by implication in some cases. It does not mean, however, that the agency’s actions cannot be reviewed at all. If a lawsuit alleges any constitutional violations, the federal’s courts’ role of reviewing constitutional claims is persevered nonetheless (Cole, 2016). Thus, the constitutionality of order still can be attacked even if judicial review is precluded by statute.
Federal Tort Claims Act
Congress enacted the Federal Tort Claims Act (the FCTA) in 1946 due to the citizens’ concerns with their abilities to address the tortuous wrongs committed by the federal employees (Damrill, 2014). Nevertheless, the FCTA was amended in 1988 by the Westfall Act; the “Congress specifically inserted a tolling provision for erroneous omissions of the government as the proper defendant” (Damrill, 2014, p. 5). There was a specific purpose behind the changes in the Act; since federal employees were now guaranteed immunity from tort claims if these related to the acts covered by their official duties, the state could avoid possible multiple lawsuits against the employees. If the Westfall Act were not enacted, the citizens would have the ability to sue official employees even if the latter were acting within the scope of their duties (Damrill, 2014). Nevertheless, since the term “acting within the scope of employment” can be interpreted differently depending on the agency’s functions and services, the interpretation of the Act and any case held under it can be complicated and has to be observed about the context.
The following acts can be considered as constitutional violations by state officials: the deprivation of rights, privileges, or immunities and the abuse of their official position to perform an illegal act. Thus, those individuals who believe that their constitutional and/or other federal rights were violated by a federal or state government officer are allowed to bring federal lawsuits against this employee (or employees). Human rights violations can include torture, discrimination, mass surveillance, slavery, police brutality, genocide, wars, human trafficking, prisoner abuse, political repression, extremism, etc. Abuse of power can include neglect, sexual abuse, physical abuse, manipulations, institutional racism (e.g. in police), bullying, and other types of psychological abuse.
The Budget as Control
The budgeting process in the USA is divided into three parts: formulation (by the executive), consideration/modification and enactment (the Congress), and budget execution and control (Pasachoff, 2016). The President’s financial plan (that should only be seen as a proposal) indicates what priorities are suggested to the federal government. The formulation of the budget continues in agencies; it is supported by various discussions and suggestions as well. Although the negotiations between the Budget Office and specific agencies are standard, the Budget Office cannot control all budget proposals of all departments and agencies (Pasachoff, 2016). For example, the Defense Department has more influence on the President compared to the Budget Office’s influence. At the same time, Congress’ spending proposals are not altered, although Congress has the power to change them if necessary. As can be seen, those agencies that are less influenced by the Budget Office during the budgeting process have more independence compared to other agencies directly controlled by the Budget Office. Thus, the legislative branch (the Congress, the judiciary, and others) can rely on its budget proposal and ensure there will not be any change in it, which allows it to focus on specific political aims without negotiation with the Budget Office. At the same time, the executive branch can control other budget proposals and decide which agencies require more funding and better align with the executive’s goals and aims.
The Budget Office uses three levers of control during the budgeting process: a form-and-content lever, an approval lever, and a confidentiality lever (Pasachoff, 2016). The first lever shows agencies how they should focus their efforts before they request the money. The second lever secures the agency’s compliance with the President’s policy and governs the agency’s budget/policy choices. The third lever “limits agencies’ ability to state publicly their views of alternative budget and policy priorities” (Pasachoff, 2016, p. 2199). Thus, the budget of an agency is used to track its performance and achievements.
Bradley, C. A., & Morrison, T. W. (2012). Historical gloss and the separation of powers. Harvard Law Review, 126(2), 411-485.
Cole, J. (2016). An introduction to judicial review of federal agency action. Web.
Damrill, J. (2014). Waves of change towards a more unified approach: Equitable tolling and the Federal Tort Claims Act. Tulsa Law Review, 50(1), 271-289.
Pasachoff, E. (2016). The President’s Budget as a source of agency policy control. The Yale Law Journal, 125(8), 2185-2289.