Constitutionality of laws restricting employment practices in the executive branch There is a large body of US Federal law dealing with the employment of government workers. For example, there are laws detailing under what circumstances an employee can be fired and what notifications and appeals must be provided when an employee is fired. Since, by these laws, Congress is attempting to regulate or control the conduct of the executive branch of the government, these laws could be construed as a violation of the Constitutional separation of powers. Has the Office of the President of the United States ever attempted to reject Congressional laws regarding the management of executive branch employees and test the validity of these laws in court?
Many laws control the conduct of the executive branch &quot;Attempting to control the conduct of the executive branch&quot; doesn't imply a violation of the constitutional separation of powers. Congress has many laws that control the executive. 35 USC 101 tells the Patent and Trademark Office what subject matter is patentable. 15 USC 1052 tells the Patent and Trademark Office that it must provide registration unless a trademark falls into one of several categories. There are many many more. This power comes from Article 1, Section 8 The power to enact laws that tell the executive branch what to do stems from Article 1, Section 8 of the Constitution, which gives congress the power &quot;to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.&quot; Example of intrusion on Executive authority But, when a statute intrudes on the authority conferred on the Executive by the Constitution, it is not constitutional. An example where Congress intruded on Executive authority is Zivotofsky v. Kerry, 576 U.S. ___ (2015). The court held that &quot;the power to recognize foreign states resides in the President alone&quot;, and that &quot;if Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. An exclusive Presidential power disables the Congress from acting upon the subject.&quot; (Citing Youngstown Sheet &amp; Tube Co. v. Sawyer, 343 U.S. 579 (1952), an important separation of powers case that went the other way: the Executive issued an order that infringed on the law-making powers vested in Congress.) Executive acknowledges that Congress can control how vacancies are filled There is a case before the Supreme Court in October term 2016, where the Executive is defending its interpretation of a statute that concerns how particular executive employees are hired, fired, or directed: National Labor Relations Board v. SW General, Inc.. The Executive is not challenging the constitutionality of the statute, though. The Executive even argues, basically, &quot;If Congress wanted to control us, it has the ability to and knows how to control us.. it just didn't in this case.&quot; No bills of attainder United States v. Lovett 328 U.S. 303 (1946) is another case where Congress went too far. The background here was that Congress passed a law that said &quot;no salary or other compensation shall be paid to certain employees of the Government (specified by name)&quot;. The court held that: &quot;Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution.&quot; This principle was refined in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). The court upheld an act that directed &quot;the Administrator of GSA to take custody of appellant's Presidential materials&quot;. Even given this specific direction to take a particular action, the court found that &quot;the Act does not, on its face, violate the principle of separation of powers.&quot;
An oath of office cannot be legally enforced through the courts, other than to demand that officials take it in order to take office, and to bar people who have taken it and then engaged in treason or sedition from holding public office in any federal, state, or local office, military or civilian, in the United States. This is something which is required of all federal and state and local public officials under the U.S. Constitution, which states in the third paragraph of Article VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The U.S. President's parallel oath of office is found in the last paragraph of Section 1 of Article II of the U.S. Constitution. It states: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — &quot;I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.&quot; But, while taking the oath is required, it is also the case that: An oath is not justiciable. The FBI cannot investigate adherence to oaths because they are not enforceable as codified law. A prosecutor cannot establish that an oath has been broken by proving certain legal elements beyond a reasonable doubt, and a judge cannot adjudicate it. There is one exception to this rule, however. Section 3 of the 14th Amendment to the U.S. Constitution states: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. So, an oath of office does impose a justiciable duty to not engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies of the United States, upon pain of not being able to hold any state or federal, military or civilian public office without a two-third majority waiver from Congress (in addition to any other consequences that may flow from this conduct without regard to having taken an oath). But, this is a very slight slap on the wrist indeed for committing treason or engaging in sedition (which are criminally punishable by decades in prison or death) after having sworn this oath. Justice Joseph Story noted in his &quot;A Familiar Exposition of the Constitution of the United States&quot; (1842) that: A President, who shall dare to violate the obligations of his solemn oath or affirmation of office, may escape human censure, nay, may even receive applause from the giddy multitude. But he will be compelled to learn, that there is a watchful Providence, that cannot be deceived; and a righteous Being, the searcher of all hearts, who will render unto all men according to their deserts. Considerations of this sort will necessarily make a conscientious man more scrupulous in the discharge of his duty; and will even make a man of looser principles pause, when he is about to enter upon a deliberate violation of his official oath. The purpose of an oath of office is simply to deny public offices to people who are not willing to publicly state that the legal system in which the people taking them will operate is legitimate. An oath to support the constitution is the modern equivalent of the feudal European ritual of &quot;bending the knee&quot; to one's legitimate feudal superior. This ritual was highlighted, for example, in the Game of Thrones books by R. R. Martin, which is based loosely on the fights over legitimacy in 15th century England's &quot;War of the Roses&quot;. Another legacy of this historical tradition is the duty of someone in military service to salute his or her superior officer. As a historical note, these seemingly toothless rituals have, historically, been surprisingly effective a screening out hard core extremist leaders trying to bring down a government based upon claims that the whole system is illegitimate when new regimes are established, and following civil wars and insurgencies. Many regimes, democratic and non-democratic, in Western political history, have imposed similar requirements. When they have done so, this has seriously influenced the political tactics used by factions that deny the legitimacy of the state and its incumbent leaders. Simply taking the oath undermines one's credibility as an insurgent leader, even if one does so in bad faith. In the United States, oaths of office were also key preconditions to the post-conflict settlements if the Whiskey Rebellion, the Civil War, and some of the lesser known episodes of a century of Indian Wars. As a more recent example, the requirement of an oath of office has materially influenced the 20th and 21st century political tactics of Sinn Féin, a political movement in Ireland, seeking to make the U.K. political subdivision known as Northern Ireland, which it deems illegitimate, a part of the Republic of Ireland. Notably, the U.S. Supreme Court in the case Powell v. McCormack, 395 U.S. 486 (1969), distinguished between a Congressional determination that someone has not satisfied the constitutionally established requirements to have an oath of office administered to them after they have been elected, which can be made by majority vote, and a Congressional determination that a member of Congress should be expelled by a two-thirds majority vote of the house of Congress to which the member of Congress has been elected. A Congressional vote to expel a member of Congress is a non-justiciable question that is not tied to the content of the member's oath of office. Similarly, judicial and executive branch officials in the federal government may be impeached by Congress, and removed from office through that process, only for &quot;high crimes and misdemeanors&quot; and not merely for otherwise failing to live up to their oath of office in a non-criminal manner (although what constitutes &quot;high crimes and misdemeanors&quot; is also a non-justiciable political question). Some legal authorities, however, have held that in some contexts, the oath of office does reflect an intent to empower executive branch officials to refuse to enforce what the President believes to be unconstitutional legislation, when its constitutionality has not yet been definitively adjudicated yet. But, courts have also held, for example, that a member of the U.S. military does not have standing to bring a suit claiming that military action in which he is involved was unconstitutionally authorized. This decision was reached on the grounds that the claim that the service member was forced to violate that service member's oath of office does not constitute a justiciable &quot;injury in fact&quot; to that member for standing to sue purposes. Smith v. Obama, No. 16-843, 2016 WL 6839357 (D.D.C. Nov. 21, 2016) at page 10 (as discussed here).
Yes Impeachment proceedings (as are all activities of Congress) are legal proceedings in that they are enabled by the Constitution. While it is true that they are not judicial proceedings, the activities of the legislature as with the executive (like a police interview) and judiciary (like a trial) are legal processes and the Fifth Amendment rights apply. During the McCarthy “red scare” era, pleading the fifth was commonplace by witnesses to Congressional hearings. However, pleading the fifth does not mean you can avoid testifying. If subpoenaed you would need to turn up and answer the questions, pleading the fifth when the answer could incriminate you in a criminal matter.
Presidential power of that type might arise from congressional authorization, where Congress authorizes action when POTUS deems that such-and-such is the case. An example is 8 USC 1182(f), which says Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Explicit constitutional powers are not numerous, but include commanding the armed forces and overseeing execution of national law by appointing and removing executive officers. POTUS is constitutionally the federal official responsible for relations with foreign nations, so he can make treaties (subject to Senate approval) and executive agreements (not subject to approval), can appoint US ambassadors and can receive foreign ambassadors. Executive agreements have the greatest potential for being an avenue for POTUS to act contrary to Congress, but they are limited to agreements pursuant to legislation, treaty and constitutional authority (and, as agreements, are not unilateral). Congress was able to somewhat limit presidential military authority by statutes such as the War Powers Act, and in the policy statement at 50 USC 1541, Congress declares The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces The law limits the length of engagement of the military, without Congressional approval, but there is no toothful restriction on deploying the military for up to 60 days. 50 USC Ch. 34 more generally addressed "national emergencies", and started by declaring an end to all existing declared emergencies. Other sections of the law require Congress to be notified and emergencies to be published in the Federal Register. An emergency can be terminated by POTUS or by act of Congress, and after 6 months (and every 6 months thereafter), Congress shall meet to discuss the emergency. POTUS must also annually re-declare the emergency to keep it in force. These are procedural requirements, not content requirements. In general, you wold have to go through Title 50 to check for particular powers granted by Congress The International Emergency Economic Powers Act grants powers to POTUS, with the following limit: (a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat. (b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat. which appears more limiting than the War Powers Act. There is an extensive list of powers granted under 50 USC 1702, which in that domain could be called "bright" lines. Generally, the lines are only as bright as Congress has painted them.
This can be effected without evidence or trial or a right to an appeal in front of an objective party. Not so. If a person is charged with a crime for violating such a code, (or refusing to leave when ordered under such a code) they could defend on the grounds that it is unreasonable, unauthorized, or violates that person's constitutional or statutory rights. Or, if a person has been ordered to leave, the person could comply and then seek an injunction forbidding future enforcement of the regulation. Such methods have been used in the past to challenge the lawfulness of administrative regulations. The Colorado code CRS 24-90-109. Powers and duties of board of trustees says that: (1) The board of trustees shall: (a) Adopt such bylaws, rules, and regulations for its own guidance and policies for the governance of the library as it deems expedient. ... (b) Have custody of all property of the library, including rooms or buildings constructed, leased, or set apart therefor; (c) Employ a director and, upon the director's recommendation, employ such other employees as may be necessary. The duties of the director shall include, but not limited to: (I) Implementing the policies adopted by the board of trustees pursuant to paragraph (a) of subsection (1) of this section; ... (III) Performing all other acts necessary for the orderly and efficient management and control of the library. This law seems to authorize libraries to adopt and enforce codes of conduct for persons using the library. This page from the CO State library development agency gives example policies that libraries are encouraged to model their policies on. In the section under &quot;Library Use/Behavior&quot; there are three example policies. All of these list various prohibited acts, which seem relatively reasonable to me. Two of the three include an explicit appeals process for serious violations. You do not indicate what sort of behavior you have encaged in for which the library may wish to ban you. In general, government facilities are allowed to make reasonable regulations for members of the public using those facilities, and it is not a violation of people's Constitutional rights to make and enforce such regulations. However, that depends highly on what the regulations are. A regulation limiting access by race would obviously be struck down. A regulation prohibiting shouting, even though it impacts speech, would be permitted as a content-neutral regulation of &quot;time, place and manner&quot;. In short it would depend very much on the specific regulation, and what rights it is alleged to violate.
Treason is basically the only crime explicitly defined by the Constitution. According to Article III, Section 3: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. So, no. What this hypothetical president is calling for is unconstitutional, is almost certainly grounds for impeachment, and may even be criminal, but treason it ain't. And that's assuming he actually does it. Simply calling for it, without acting (or directing others to act) to bring it about, may well be protected by the First Amendment.
No. A governor could not be held liable in a lawsuit on those grounds. Governors in every U.S. state have governmental immunity from liability in tort (and a lawsuit for wrongful death is a kind of tort lawsuit) for their official actions, and there is no U.S. state in which this kind of lawsuit would fall within an exception to that governmental immunity. There is not private cause of action against a state government executive branch official under federal law for a violation of "Trump administration official guidelines for reducing the covid-19 mitigation." Indeed, it isn't clear that a federal statute creating such a private cause of action that purported to pierce a state law official's governmental immunity from liability, even if it were enacted, would be constitutional. In contrast, if a corporation violated such a guideline, the violation of the guideline would be evidence of negligence, although probably not conclusive evidence, in a suit for wrongful death by a non-employee brought against the corporation.
There are a number of areas in which the US states can pass laws only to the extend that they do not conflict with Federal laws passed by Congress. When a federal law clearly says that states may not pass laws on a given subject, the issue is clear. When it specifically invites state laws, the issue is also clear. But when a Federal law imposes certain regulations in a given area, it may not be clear if a state may go beyond the Federal requirements. Sometimes it can. For example, there is a Federal Minimum Wage. But states are free to impose higher minimum wage levels, and some have done so. So when a court decision or legal article says &quot;Congress having occupied the field&quot; it means that a set of Federal laws is intended to be a compelte regulation of a given area, and states may not add additional regulations of their own in that area. I am not sure what rules apply to disclosure of information by the Capitol police.