Lucia v. SEC: Justice Breyer Warns of a Dramatic Expansion of the President's Control Over the Federal Civil Service

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Kirk McGill[*] & Ben K. McGill[*]

The “Appointments Clause” mandates that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by” the United States Constitution. Thus, the Constitution requires Officers of the United States to receive a commission from a “higher officer.” Accordingly, the President appoints the heads of the “Great Departments” (e.g. cabinet secretaries) with the advice and consent of the Senate, and either these “principal officers,” or the President as Chief Executive, appoint their respective subordinates. This ensures that each officer is accountable to a single superior, and that single superior is either the President or accountable (directly or indirectly) to the President and ultimately to the American electorate. For the first 150 years of the Republic’s history, the vast majority of the Executive Branch consisted of officers, inferior and superior (principal), appointed pursuant to the Constitution and subject to removal by the President or the appointing principal officer at any time and for any reason. In contrast, upon entering office, President Donald Trump had only 554 appointments to make in the Executive Branch out of 2,087,747 nonmilitary Executive Branch employees in Federal Fiscal Year 2017.

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Bears Ears: National Monument or National Controversy?

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Laura Martinez

In 2016, a national monument designation set in motion a series of events leading to compelling legal and policy questions. It is undeniable that parts of the United States, particularly in the western states, are unparalleled in their desolate beauty, but many Americans often struggle with how much governmental actors should interfere to maintain these lands. In the twilight of his presidency, President Barrack Obama designated 1.35 million acres of land in Utah as Bears Ears National Monument. The Monument was designed to be run jointly by both the U.S. Forest Service and Bureau of Land Management (BLM). Unlike national parks, which are set apart by Congress for the use of the people of the United States because of scenery or natural peculiarity, national monuments are reserved by the government because “they contain objects of historic, prehistoric or scientific interest.” In his signing statement, President Obama referred to extensive archeological and tribal interests as reasons to designate the monument. Bears Ears National Monument contains approximately 100,000 Native American archaeological and ancestral sites, and members of the Hopi, Navajo, Ute, and Zuni tribes petitioned the federal government to act to protect this area.

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