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Standards for Ethical Conduct. If the United States wants to remain a world leader in this global society, what ethical standards must we set for our political representatives? Legislative Authority: What requirements of a branch system of checks & balances must be upheld? .

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Standards for ethical conduct
Standards for Ethical Conduct

If the United States wants to remain a world leader in this global society, what ethical standards must we set for our political representatives?

Legislative Authority:

  • What requirements of a branch system of checks & balances must be upheld?

Standards for ethical conduct1
Standards for Ethical Conduct

  • What requirements of a branch system of checks & balances must be upheld?

    • Preserve broad delegation of authority.

    • Preserve congressional oversight and accountability.

Separation of powers scope of executive authority

Separation of Powers:Scope of Executive Authority

Part 1

Problem for case studies
Problem for Case Studies

  • If the United States wants to remain a world leader in this global society, what ethical standards must we set for our political representatives?

  • Context: Executive authority to act independent of other branches.

Executive power
Executive Power

  • Defined by Art II U.S. Constitution

  • Independent Powers: (Sect 2) Commander in Chief-Reporting by Executive Departments; Pardons; Fill vacancies. Executive Orders (Sect 3)

  • Concurrent Powers: Subject to congressional authority to appoint public officials and inferior officers; treaties (Sect. 2)

  • Delegated Powers: As authorized by Congress

Article ii 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

    • Entire bill; Line Item Veto

  • OMB Reporting for agency budgets.

    • OIRA oversight; Cost-benefit analysis

  • Legislative vs executive legislative veto vs line item veto
    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

    Ins v chadha
    INS v. Chadha

    • Case re Validity of the Legislative Veto.

    • Who was Chadha & why did he get so much attention?

    • Had the Judge failed to reopen the case, what would have happened?

    Article ii appointment
    Article II Appointment

    • Qualifications of Appointees

      • informal hearing re nominees qualifications

        1) 3-5 yr absolute bar from representing clients- conflict of interest prohibitions,

        2) age limits of 70 for appointees,

        3) FBI investigation,

        4)chairman designated with senate approval,

        5) Senate independent investigation of nominees, and

        6) access to investigative reports

    Appointment powers
    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.

    Morrison v olsen
    Morrison v. Olsen

    • RULE: An officer who is appointed by agency head, Pres. or judiciary for limited purpose, with limited function and tenure, and is subordinate to higher official, is considered an inferior officer and need no go through Article II senate confirmation.

    Ethics in government act
    Ethics in Government Act

    • Article II Requires:

      1) detailed financial reports which are made available to public;

      2) lifetime prohibition against participating in matters in which personally involved;

      3) 2 year prohibition on any matter within his official responsibility; and

      4) 1 year prohibition on all business appearances before agency

      Penalty for violation is criminal and disqualification sanctions

    Removal powers
    Removal Powers

    • Article II appointees can only be removed by impeachment, although seldom impeached.

    • Congress can’t 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.

    Omb budget oversight
    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.

    Executive orders
    Executive Orders

    • Interpret law and have the force and effect of law in the absence of congressional action.

    • 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.

    Executive order 12866
    Executive Order 12866

    • Reform regulatory benefit to consider cost-benefit analysis, alternatives, and impact on state, local and tribal governments.

      • Each agency should develop and report regulatory agenda under development or review thru OIRA.

      • OIRA often reviews for conflicts with President’s priority and creates a centralized review of regulation that impact economy, environment, public health, state or local, or federal programs;


    • If a statute confers no rights, then what type of agency action would be involved in implementation?

    • What is the standard of review for such actions?

    • Is Executive use of E.O. to change policy, an abuse of executive authority?

    Scope of power domestic vs foreign policy
    Scope of PowerDomestic vs Foreign Policy

    Domestic Policy

    • Executive Authority more restricted; subject to checks & balances.

    • Limited by Constitution & Congress.

    • Presumptive Judicial review

    Foreign Policy

    • Executive Authority more broadly construed; greater deference;

    • Limited judicial review; arguably more independent authority.

    Broad interpretation of executive power
    Broad Interpretation of Executive Power

    Case study gays in the military
    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 Don’t Ask-Don’t Tell Policy?

    • How did Clinton use the E.O. to fulfill a campaign promise?

    • Was it an abuse of discretion?


    • Approximately 200K of the 2 million persons 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.


    • 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.

    10 usc 654
    10 USC 654

    • (a) Findings: Congress makes the following findings

      (1) Sect. 8 of art 1…commits 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.

    Policy 10 usc 654
    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 conduct…is 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.

    Definition of a homosexual
    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.”

    Secretary of defense
    Secretary of Defense

    • Legislative Reports: “It is the sense of Congress that—(1)the suspension of questioning concerning homosexuality as part of the processing of individuals for accession into the Armed Forces under the interim policy of Jan. 29, 1993, should be continued, but the Secretary of Defense may reinstate that questioning with such questions a she considers appropriate if the Secretary determine that it is necessary to do so….

    Basis for the ban secy of defense
    Basis for the Ban-Secy of Defense

    H. “Homosexuality is incompatible with military service…seriously impairs the accomplishmnet of the military mission…affects the ability …to maintain discipline, good order, and morale: to foster trust and confidence among servicemembers;… to ensure the integrity of the system of rank and command…to facilitate deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy;…to maintain the public acceptability of military service;…”

    Definition of a homosexual 10 usc 644
    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 act…in subparagraph (A).

    Free speech association
    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.

    Constitutional protections
    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.

    Case study gays in the military1
    Case Study: Gays in the Military

    • What is the Don’t Ask-Don’t Tell Policy?

    • How did Clinton use the E.O. to fulfill a campaign promise?

    • Was it an abuse of discretion?

    Case study gays in the military2
    Case Study: Gays in the Military

    • What is the Don’t Ask-Don’t 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.

    Rumsfeld v forum for academic and institutional rights
    Rumsfeld v. Forum for Academic and Institutional Rights

    • S.Ct. ruled (8-0 vote ) that the federal government can withhold federal funds from colleges that bar or restrict military recruiting on their campuses.

      • 3rd Cir. ruled the 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)

    Rumsfeld v forum for academic and institutional rights1
    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)


    Discussion questions
    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.

    Amelioration efforts
    Amelioration Efforts

    • What amelioration efforts should be instituted by law schools to reduce the discriminatory aspects of military recruiting?

    Remedies for abuse of executive authority
    Remedies for Abuse of Executive Authority

    Legal Remedies

    • Judicial Review of decisions;

    • Congressional action to restrict;

    • Impeachment;

    • Elect someone else;

    • Change in party representation;

    • Criminal actions where violation of law;

    • Censure; Sanctions

    Practical Effect

    • Remedial vs. preventive;

    • Burden on victims or special interests to challenge;

    • Public opinion makes it clear lack of tolerance; and

    • Protracted legal process for legal remedies gives Gov. time to achieve goal; i.e., detention, intelligence, & war.

    Standards for ethical conduct2
    Standards for Ethical Conduct

    • What requirements of a branch system of checks & balances must be upheld?

    Standards for ethical conduct3
    Standards for Ethical Conduct

    • What requirements of a branch system of checks & balances must be upheld?

      • Preserve an independent judicial branch.

      • Preserve two-party political system in government.

      • Ensure a person’s vote is counted.

    Definition of terrorism
    Definition of Terrorism

    • Terrorism requires a 1) danger to life; 2) that appears to be intended to intimidate civilian or influence government policy; and 3) that occurs primarily within the territory of the United States. (18 USC 2331)

    Domestic terrorism
    Domestic Terrorism

    Acts occurring within the territorial United State:

    1) that endanger human life;

    2) that are in violation of the criminal laws; and

    3) that appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination or kidnapping. (USA Patriot Act, Section 802).


    • Defense of Necessity

      • Lesser of two evils

      • Moral or social basis

    • Defense of Justification

      • Act to prevent offense

      • Defend another or property

    Case study analysis
    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.

    Enhanced interrogation techniques approved in 2002
    Enhanced Interrogation TechniquesApproved in 2002

    • Attention Grab: Grabbing and shaking him

    • Attention Slap: Open-handed slap causing pain and fear

    • Belly Slap: Hard open-handed slap to the stomach

    • Long time Standing: Forced to stand handcuffed, w/feet shackled to an eye bolt in the floor for more than 40 hours.

    • Cold cell: Prisoner left to stand naked in a cell at 50 degrees, doused with cold water.

    • Waterboarding: Bound to an inclined board, feet raised. Cellophane wrapped over face and water poured over him. Eventually, gag reflex kicks in and fear of drowning leads to instant pleas. (average time was 14 seconds before confess)

    Concerns over techniques
    Concerns over Techniques

    • Confessions are unreliable ‘cause it is considered a mock execution.

    • Prisoners will agree to anything to get the treatment to stop.

    • Willingness to do it to others suggest US POW will be more likely subjected to same treatment.

    • Inhumane and cruel punishment.


    • Manual with permissible interrogation techniques;

    • Nature of techniques based upon need to get information;

    • Signed off in writing before hand;

    • Videotaped during interrogation.

    Prosecution for violation
    Prosecution for Violation

    • Chief Warrant Officer Lewis Welshofer was tried for murder in the death of an Iraqi general killed by stuffing him in a sleeping bag and sitting on him. He was convicted of involuntary manslaughter and dereliction of duty. No jail time given. He forfeits $6,000 salary, restricted to barracks for 60 days. Welshofer had the approval from commander to use the technique. Major general has the right to set aside or reduce the sentence.


    • While there has been much debate about what constitutes torture, the focus of this case study is on identifying exigent circumstances that may allow the President to suspend enforcement of the Amendment and use interrogation tactics that may otherwise be defined as torture.

    • ASSIGNMENT: Draft a policy for the Joint Chiefs of Staff from the President that includes the following:

    • 1) A statement of when torture can be used by defining the exigent circumstances, if any, and may include an absolute ban, a qualified ban with any narrowly tailored exceptions or conditions, or an unqualified ban. Identify three factors or reasons to justify your response.

    • 2) What penalty should be exacted against U.S. military persons, who under Executive Order or through field manuals are ordered to take any action in violation of this policy. The effectiveness of the penalty will be predicated in direct proportion to the level of enforcement imposed. If the penalty and remedy is strong enough, then persons will be effectively deterred from violating the policy.