Executive Authority

1
Executive Authority

• Executive Orders Gays in the Military

2
Case Study Analysis

• Approach in evaluating a case study or problem
• What is the problem or need and why is it
  important?
• Can the problem or need be addressed under
  existing statutory authority?
• Are the interests of the parties mutually
  exclusive?
• If not, what are the common interests that can
  lead to a process for resolving other issues.

3
Executive Powers

• Article II Powers
• Oversight of Executive Departments
• Hire Fire
• Reporting
• Appointment of Agency heads (w/Senate
  confirmation)
• Inferior officers (Indep. Counsel)
• Veto of legislative actions
• OMB Reporting for agency budgets.

4
Branch System-Check Balance

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Legislative vs. ExecutiveLegislative Veto vs.
Line Item Veto

• Congress reserves power in itself after
  delegation.
• Effect is to void agency action without the need
  for legislation.
• Used to assure accountability over executive and
  independent agencies.
• Found to be counterprooductive and is essentially
  dead or sever veto provision.

• Power of the President to veto a line of a bill,
  or discrete sections.
• 1998-- Struck down as unconstitutional delegation
  to Executive to amend laws enacted by Congress.
• Bills can only be amended via
• Bicameralism
• Presentment

6
Appointment Powers

• All principal and inferior officers as stated by
  Congress
• Include heads of all of the executive dept. and
  members of independent agencies in executive
  branch.
• Article III judges, including Justices of Supreme
  Court, federal judges on court of appeals and
  district courts. N/a to employees or inferior
  offices.

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Removal Powers

• Article II appointees can only be removed by
  impeachment, although seldom impeached.
• Congress cant remove executive heads but can
  require for cause removal.
• Independent agency heads-Only for cause. Look at
  Congressional intent re
• 1) Commission was nonpartisan and intended to be
  impartial
• 2) Duties are quasi judicial and legislative in
  nature.

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OMB Budget Oversight

• Power to review and revise budgetary and
  legislative requests through Office of Info and
  Regulatory Affairs.
• Advance notice and impact report on agency
  actions and compatibility with executive goals.
• Interagency review is usually frequent and
  diverse to ensure broad policy coordination.
• Justice Dept. auth. to conduct litigation for
  agencies--defend and bring suit.

9
Executive Orders

• Interpret law and have the force and effect of
  law in the absence of congressional action.
• Give direction to agency re enforcement,
  implementation of law, narrow or broaden scope.
• Permanent action would require legislation. Often
  used to provide interpretation of how it should
  be enforced.
• E.O. does not create any right or benefit
  enforceable in law or equity against the
  government.
• Designed to prevent direct judicial review of
  violations of EO.

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Case Study Gays in the Military

• Homosexual (per Websters) is a person "of or
  characterized by sexual desire for those of the
  same sex.
• What is the Dont Ask-Dont Tell Policy?
• How did Clinton use the E.O. to fulfill a
  campaign promise?
• Was it an abuse of discretion to use E.O. to
  change policy?

11
Facts

• Approximately 200K of 2 million in the military
  are gay.
• Of 2700 men and women surveyed, about 3-9 of men
  and 5 of women regularly have sex with someone
  from the same gender.
• 2 of men and .7 of women admit that they have
  had sex with the same person at least once.

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Chronology

• May 19, 1992 Meinhold, an enlisted officer in
  Navy, admits gay. Military seeks to sever him
  from navy. He sues.
• Nov. 1992-- Clinton elected President. Campaign
  promise to eliminate ban on gays in the military.
• January 1993--Clinton proposed an Executive Order
  suspending policy against discrimination in the
  military.
• January 29, 1993--Clinton and Armed Services
  agree to 6 mo time out from action against gays.
  
• D.Ct. judge invalidates ban against Meinhold as
  unconstitutional.
• Congress wants to seek a compromise rather than
  let the court decide. Issue status (don't ask)
  or conduct (can discharge).
• September 29, 1993 -House voted for modified
  policy 301-134
• August 31, 1994 Ninth Circuit affirmed that part
  striking it down as it relates to Meinhold, but
  reversed that judgment was overbroad.
• April 1996 After remand, Ninth Circuit upheld the
  policy as not a violation of Free Speech rights.

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10 USC 654

• (a) Findings Congress makes the following
  findings
• (1) Sect. 8 of art 1commits exclusively to the
  Congress the power to raise and support armies.
• (2)There is no constitutional right to serve in
  the armed forces.
• (4) The primary purpose of the armed forces is to
  prepare for and to prevail in combat should the
  need arise.
• One of the most critical elements in combat
  capability is unit cohesion
• (13) The prohibition against homosexual conduct
  is a longstanding element of military law that
  continues to be necessary in the unique
  circumstances of military service.

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Policy (10 USC 654)

• (b) A member of the armed forces shall be
  separated under regulations prescribed by the
  Secretary of Defense if one or more of the
  following findings is made
• (1)That the member has engaged in, attempted to
  engage in, or solicited another to engage in a
  homosexual act, unless there are further
  findings
• (B) such conductis unlikely to recur
• (C) ..was not accomplished by use of force,
  coercion intimidation
• (D) members continued presence is consistent
  with the interests of the armed forces
• (E) member does not have a propensity or intent
  to engage in, homosexual acts.
• (2) That the member has stated that he or she is
  a homosexual or bisexual.
• (3) person has married or attempted to marry a
  person of the same biological sex.

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Definition of a Homosexual

• (f)(1) means a person, who engages in,
  attempts to engage in, has a propensity to engage
  in, or intends to engage in homosexual acts, and
  includes the term gay and lesbian.

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Definition of a Homosexual 10 USC 644

• (3)the term homosexual act means
• (A) any bodily contact, actively undertaken or
  passively permitted between members of the same
  sex for the purpose of satisfying sexual desires
  and
• (B) any bodily contact which a reasonable
  person, would understand to demonstrate a
  propensity or intent to engage in an actin
  subparagraph (A).

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Free Speech Association

• First Amendment or liberty interest to be free to
  engage in common occupation and maintain a good
  reputation.
• Other person's liberty interest not to have
  persons around them in close quarters which may
  invade a reasonable sphere of privacy.

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Constitutional Protections

• Due process right to a Pretermination hearing
  before discharge.
• Post-termination hearing subjects person to
  stigma so get full trial-type hearing
  w/cross-exam.
• Equal protection right distinguishes conduct from
  label.
• Gov. can legislate morality if necessary to
  maintain order, cohesion combat readiness.
• No property right to continued service in
  military.
• Obligation if conscription (draft) imposed.

19
Case Study Gays in the Military

• What is the Dont Ask-Dont Tell Policy? On the
  application, not ask not required to tell if
  you are gay/
• How did Clinton use the E.O. to fulfill a
  campaign promise? Used E.O. to modify military
  guidelines re information sought from applicants.
• Was it an abuse of discretion? No, because
  Congress had the right to act and threatened to
  codify ban unless compromise reached.

20
Rumsfeld v. Forum for Academic and Institutional
Rights

• S.Ct. ruled (8-0 vote )federal government can
  withhold federal funds from colleges that bar or
  restrict military recruiting on their campuses.
• 3rd Cir. Ruled gov. failed to show needs
  justified intrusion into Free Speech rights.
• Campuses have no First Amendment right to exclude
  recruiters who discriminate against gays.
• Solomon Amendment allows government to withhold
  federal funds, e.g., work study, financial aid.
  contracts. (passed in 1994)

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Rumsfeld v. Forum for Academic and Institutional
Rights

• SCT The Solomon amendment neither limits what
  law schools may say nor requires them to say
  anything.
• "Law schools remain free under the statute to
  express whatever views they may have on the
  military's Congressionally mandated employment
  policy, all the while retaining eligibility for
  federal funds."
• (Roberts wrote majority opinion)

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Discussion Questions

• 1) How do you identify a homosexual person under
  the policy? To what extent should the Military
  Board rely upon a person's characterization of
  themselves vs. labels attached to a person as a
  "homosexual" in deciding on the application of
  the regulation ban. If someone denies or fails to
  acknowledge his or her homosexuality, but someone
  else "outs" him or her, would that be sufficient
  to establish that they are a homosexual?
• 2) Should this issue be resolved by Executive
  Order, congressional legislation, or by Judicial
  review. What are the policy and legal arguments
  to support the claim that the regulation is
  required to maintain discipline, good order and
  morale?
• 3) What effect should congressional or state
  action failing to recognize the rights of gay
  persons to marry or be entitled to benefits have
  on military policy regarding gays in the
  military.