Brielle Hill

Dr. W. Gin

Constitutional Law

7 October 2016

Final Hypothetical – President Drump

In this case we must consider the constitutionality of the Campaign Against Corruption

Act (CACA). We must examine if the request and demands of the CACA Commission is

requiring too much of the executive and draws his focus away from his other duties. We will

evaluate all of the possible constitutional issues with the CACA law and the CACA

commission’s power.

The CACA Commission is the new agency formed from the CACA, three commissioners

are selected by Congress, Drumps’s Attorney General is allowed 30 days to oppose. The

legislative branch which is headed by Congress, has the main task of making the laws, which

includes the power of passing laws, originating spending bills, impeaching officials and

approving treaties. Much like the Comptroller General in Bowsher v. Synar, the three

commissioners for the CACA functions under the legislative branch of government. “Against

this background, we see no escape from the conclusion that, because Congress has retained

removal authority over the Comptroller General, he may not be entrusted with executive power.”i

The functions assigned to the CACA Commission are functions that fall under the legislative

branches power. The commission has the power to pursue prosecution against members of the

federal government or business engaged in corruption; this function may fall under impeaching

officials. The commission can fully nullify elements of executive orders and treaties if it is found

that provisions of executive orders or treaties were made in exchange for benefits; this function
falls under approving treaties. The list of functions goes on and on but the fact of the matter is

that the commission is appointed by Congress, removed by congress, with the exception of the

Attorney General having that power in cases of high crimes and misdemeanors, therefore the

commission’s powers are rightfully granted. In Minstretta v. U.S., the court decided that under

the noncomandeering doctrine it was ok for Congress to seek help when it was increasingly

necessary, in this case it is increasingly necessary to regulate the federal government and big

businesses because our president is known for being a businessman with questionable business

interest.

“The Appointments Clause reads as follows: … but the Congress may by Law vest the

Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts

of Law, or in the Heads of Departments….”ii In the case Morrison v. Olson, the court posed the

question of whether the appellant was an inferior officer or a principal officer, while they said

that the line was not clearly drawn because the appellant is subject to removal by a higher

executive branch official. The court continued by saying that although the appellant is not

subordinate to the Attorney General because she possesses a degree of independent discretion to

exercise the powers delegated to her, the fact that she can still be removed by the Attorney

General indicated that the appellant is indeed inferior in rank and authority. Much like the court

said in Morrison v. Olson, the same can be applied to the case of the CACA commissioners.

Although Congress selects the commissioner Drump’s attorney general has 30 days to decide

whether or not to oppose, as well as the power to remove any of the commissioner in the case of

high crimes and misdemeanors. Under the Independent Counsel Act congress can initiate request

for independent counsel. The attorney general must approve in 90 days, much like the CACA

commissioners 30-day approval clause, as well as having the power to remove the independent
counsel if “good cause”. “Second, appellant is empowered by the Act to perform only certain,

limited duties. An independent counsel’s role is restricted primarily to investigation and, if

appropriate, prosecution for certain federal crimes….”iii There is a list of powers that the CACA

commission is granted and the only work off of that list of powers. The CACA commission has

the function of developing standards of behavior of federal government employees to make sure

that they avoid profiting from government. The idea of tenure could be the only thing that may

come into question when considering the constitutionality of the CACA commission’s power.

“There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the

office pf the independent counsel is “temporary” in the sense that an independent counsel is

appointed essentially to accomplish a single task, and when that task is over the office is

terminated….”iv While this true for the idea of an independent counsel when it comes to

executive scandal needed to be investigated at that particular time. In the case of CACA

commission, the idea of having each of the commissioners on for the full term of the President

Drump, makes more sense because of the type of man the president is. In order to ensure the

safety of the country it is important to keep the commissioners on so that in case anything my go

wrong. In the sense of the argument posed by President Drump, stating that the demands of the

commission are too much and that he does not have tie to engage in the request is ridiculous. The

CACA commission is a part of the legislative branch therefore it is not a part of their functions to

work or worry about what the executive can handle. As the president of the United States it is

understandable that there will be a mountain of things that need to be accomplished therefore

complaining about the work is not exactly presidential. Also, the commission is not explicitly

asking for President Drump to do anything that requires any real work. The commission is

simply there to monitor the federal government and businesses and create standards which they
should abide by, which in any job is a normal request. By President Drump complaining about

the request of the commission he is basically saying that having to adhere to correct and

governmental standards is something he cannot do.

The CACA was created in order to protect the country and make sure that our president

would be able to separate his business interest and United States policy. Therefore, I see no

reason why the constitutionality of the CACA is up for questioning. The CACA does not call a

political question that can only be answered by one branch of government, and is it a joint effort

between branches with an inferior officer. However, the idea of veto that is presented along with

the CACA Commission’s decision can be questioned. The Presentment Clause is viewed as a

provision that protects the President's veto power. Even though Drump vetoed the CACA, his

veto was overridden by a two-thirds vote in the House and Senate. The decisions by the CACA

Commission on contracts, executive order, and treaties can be reversed if one chamber of

Congress decides to veto the Commissions’ decision. If no chamber of Congress vetoes a CACA

Commission decision, the president is given an opportunity to veto the decision but the Congress

can reinstate the decision of the CACA Commission with a 2/3rds vote in each chamber. In INS

v. Chadha, it was said that the constitution embodies other things beside efficiency.

“Convenience and efficiency are not primary objectives—or the hallmarks—of democratic

government and our inquiry is sharpened not blunted by the fact that congressional veto

provisions are appearing with increasing frequency in statuses which delegate authority to

executive and independent agencies….”v The fact that Congress can automatically veto a

decision and reverse it without going through the proper channels is unconditional at best.

“Explicit and unambiguous provisions of the Constitution prescribe and define the respective

functions of the Congress and of the Executive in the legislative process,”vi Both Houses of
Congress as well as the President share the power of lawmaking as well as vetoing that law.

Therefore, the idea that one chamber of Congress gets first and foremost decision on decisions

that is made by the CACA Commission. It is a violation of separation of powers. There is no

bicameralism, Furthermore, when the president is giving the opportunity to veto a decision the

idea of separation of powers is now reinstated. So the idea that could be argued that maybe, just

maybe, Congress did not get what separation of power and sharing lawmaking functions, is

voided. In the dissent in INS v. Chadha, Justice Powell argued that without the power to veto

Congress would lose power, he believed they would either not legislate because it was too much

to do or delegate authority to executive branch which can make decisions which has not been

approved by both chambers of Congress. The argument made by Powell is ridiculous. The idea

that Congress will stop legislating because they have to go through the proper channels to make a

law is ultimately childish. The constitution is hundreds of years old therefore plenty members of

congress who have abided by the idea of both Houses and the president sharing the lawmaking

power. The idea of separation of powers was made specifically not give one branch too much

power, ultimately Powell is arguing for just that, to have the most power. Overall, the idea that

one chamber of Congress gets to decide to veto the decisions of the CACA Commission’s

decisions is unconstitutional and a violation of the separation of power.

In conclusion, this case made us consider the constitutionality of the Campaign Against

Corruption Act (CACA). While the idea and standards of the CACA is not unconstitutional in

anyway, the way decisions of the CACA Commission are vetoed is however unconstitutionally

violating the separation of power and the sharing of lawmaking between both Houses and the

President. We examined if the request and demands of the CACA Commission are requiring too

much of the executive and draws his focus away from his other duties and came to the
conclusion that that is not true. As the President of the United States there is much that is

required in that job title therefore complaining of burden is not something a president should do.

The CACA Commission does not explicitly anything of the president. The idea is to create

standards and regulate the federal government and businesses. We evaluated all of the possible

constitutional issues with the CACA law and the CACA commission’s power. Under the many

acts, doctrines, and precedents it is concluded that the CACA commission’s power is not

unconstitutional in any way.

i Gilman et al., American Constitutionalism, Vol. 1, p. 604

ii Gilman et al., American Constitutionalism, Vol. 1, p. 607
iii Gilman et al., American Constitutionalism, Vol. 1, p. 607
iv Gilman et al., American Constitutionalism, Vol. 1, p. 608
v Gilman et al., American Constitutionalism, Vol. 1, p. 598
vi Gilman et al., American Constitutionalism, Vol. 1, p. 598