Executive Agencies: Breaking Laws, Facing Consequences

When an executive agency breaks the law, it can have serious consequences. In the United States, the President has the power to appoint and remove the heads of executive agencies, who are responsible for carrying out the day-to-day administration and enforcement of executive orders and statutes. While the President generally needs to have cause to remove the head of an independent agency, this is not always the case for executive agencies.

However, it is important to note that the removal of an agency head does not always lead to legal consequences for the agency itself. The actions taken in response to an executive agency breaking the law can vary depending on the specific circumstances and the nature of the law that was broken. In some cases, there may be internal investigations or disciplinary actions, while in other cases, legal charges or prosecutions could be brought against the agency or its members. Ultimately, the response to an executive agency breaking the law can depend on various factors, including the severity of the law broken, the specific laws and regulations governing the agency, and the political context at the time.

Prosecution and Internal Discipline

Many acts of misconduct by law enforcement are crimes. Assault, aggravated assault, murder, and manslaughter are crimes under state law, and violations of civil rights by government agents are federal felonies. Charges and convictions of police officers are extremely rare, even in cases of homicide. Many other acts of misconduct that do not rise to the level of a crime are subject to internal discipline, but those investigations often lack substance.

The National Police Misconduct Recording Project analyzed 8,300 credible police misconduct accusations against nearly 11,000 police officers from April 2009 through December 2010 and found that only 3,238 resulted in any legal charges. While it’s unclear if each misconduct allegation could have resulted in charges, it is indisputable that police officers who are charged have better outcomes than ordinary defendants. Of those officers charged, only 33% were convicted and only 12% were incarcerated. By comparison, 68% of ordinary felony defendants who are charged are convicted and 48% incarcerated.

Union contracts, local regulations, and “law enforcement bills of rights” statutes place special limits on internal investigations of police misconduct, including long delays before officers are required to make any statement to investigators, and providing officers with opportunities to review evidence before being interviewed. Civilian criminal defendants, by contrast, are almost never provided access to the evidence against them before they are charged and sometimes never receive discovery at all if they plead guilty.

Then there is the informal “blue wall of silence,” in which officers provide each other with cover stories, retaliate against whistleblowers, and refuse to testify against one another. The formal protections and informal code of silence reinforce each other: The delays between a use of force and an investigation provide an opportunity to coordinate testimony and pressure potential witnesses.

Local prosecutors also face internal pressure not to charge officers. Police officers are prosecutors' star witnesses, central to the prosecutors' ability to earn the convictions that are so essential to their conception of public safety and professional success. Prosecutors may also help cover up police misconduct by, for instance, unlawfully concealing evidence of police misconduct from defendants and their lawyers.

In theory, the federal government could step in when local prosecutors fail to hold police to account. In practice, however, the federal government’s record of holding local law enforcement to account is not inspiring. According to an investigation by the Pittsburgh Tribune-Review, the Justice Department declined to bring charges in 96% of the police misconduct cases it received from 1995 through 2015. For other crimes, the rate of declination was 23%. According to government statistics compiled by the Transactional Records Access Clearinghouse, from 1990 to 2019 the Justice Department filed civil rights charges against law enforcement an average of only 41 times per year. Last year, federal prosecutors brought just 49 criminal cases against law enforcement for violating civil rights out of a total of over 184,274 federal criminal cases.

Qualified Immunity

In the United States, qualified immunity is a legal doctrine that protects government officials from civil lawsuits for misconduct or mistaken judgments made while acting in their official capacity. This immunity is not a blanket protection, as it only applies when officials' actions did not violate "clearly established" statutory or constitutional rights of which a reasonable person in their position would have known.

The Supreme Court created qualified immunity in the 1960s to shield government actors from frivolous litigation and financial liability when they act in good faith in unclear legal situations. The Court has emphasised that government actors must be able to do their jobs without worrying about baseless lawsuits. However, critics argue that qualified immunity has allowed officials who abuse their power or engage in unethical conduct to escape accountability. They contend that the "clearly established" standard is incredibly difficult for plaintiffs to meet, as they must prove the violation of a "clearly established" law or right, which often requires the existence of a previous case law directly on point.

The application of qualified immunity is determined through a two-part test. Firstly, a court must assess whether the facts indicate that a constitutional right has been violated. If so, the court then examines whether that right was "clearly established" at the time of the incident. Qualified immunity is not immunity from paying damages but rather immunity from undergoing the costs of a trial. Therefore, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery.

Civil Lawsuits

However, civil rights plaintiffs face many obstacles to justice. One of the most significant is the doctrine of "qualified immunity", which was created by the Supreme Court in the 1960s and has since been expanded. Qualified immunity is a defence that can be used by law enforcement officials to avoid civil liability. To overcome this defence, plaintiffs must demonstrate that a "clearly established" right was violated. This requires pointing to a similar judicial precedent, which can be difficult given the unique facts of each case. As a result, courts have granted qualified immunity even in cases of blatant illegality.

Another challenge to civil lawsuits is the concept of "absolute immunity", which makes it even more difficult to sue prosecutors for civil rights violations. Judges have held that prosecutors are entitled to absolute immunity from civil suits, even if they acted in bad faith and knowingly broke the law to secure convictions. This immunity applies to severe misconduct, including falsification of evidence, coercion of witnesses, and withholding of evidence.

Plaintiffs may also attempt to sue local governments instead of individual prosecutors or police officers, but the Supreme Court has limited these types of lawsuits as well. To sue a city for a constitutional violation committed by its employees, plaintiffs must demonstrate that the violation arose from the government's "policy or custom". The burden of proof in these cases is extremely high, making it nearly impossible to succeed in practice.

Executive Orders

If an executive agency or its members break the law, there are typically few consequences. This is especially true when the violation involves police brutality or official misconduct. For example, in the case of George Floyd's death, the responsible police officers were prosecuted, with one officer charged with murder and three others facing lesser charges. However, this scenario is rare, as most instances of law enforcement brutality do not result in criminal charges, even with video evidence.

The power to issue executive orders is not unlimited and can be challenged if the head of the executive branch exceeds their authority. Executive orders and their implementation can be contested under applicable state or federal laws and the US Constitution. Violating an executive order can result in civil sanctions or criminal penalties, similar to violating a statute. The specific penalties depend on the type of violation and violator and can include civil fines, administrative or business licensing repercussions, or criminal penalties such as misdemeanors, fines, or arrests.

While the President has significant influence over executive orders, their power is not absolute. The US Constitution outlines the President's duty to "take Care that the Laws be faithfully executed." This implies a restriction on the President's ability to remove executive officers at will, except for federal judges. The President's power of removal is further limited by Congress's authority to appoint inferior officers and determine their removal process.

In conclusion, while executive orders provide a streamlined process for addressing emergencies and administrative issues, they are subject to legal limitations and can be challenged if they exceed the authority of the executive branch. Violating an executive order can lead to similar consequences as breaking a statute, including civil or criminal penalties. However, when it comes to consequences for executive agencies or officials who break the law, there is often a lack of accountability, particularly in cases of police brutality and misconduct.

Removal Power

The President of the United States has the power to remove executive officers as a means of discipline. This power is derived from the President's obligation to ensure the faithful execution of the laws. However, this removal power is not unlimited and has been restricted by Congress and the courts in certain situations.

The President has the authority to remove all officers in whose appointment he has participated, except for federal judges. This power is known as the "removal power" and is derived from the President's duty to "take Care that the Laws be faithfully executed." The removal power allows the President to hold executive officers accountable and ensure they are competently performing their statutory duties.

However, Congress has placed restrictions on the President's removal power in certain cases. For example, Congress may limit the removal power of inferior officers as it deems best for the public interest. In addition, Congress has created independent agencies, such as the Federal Trade Commission, which are headed by officers who are protected from at-will removal by the President. These officers can only be removed "for cause," such as negligence or malfeasance, providing a level of stability and independence to these agencies.

The courts have also played a role in defining the scope of the removal power. In the case of Myers v. United States, the Supreme Court upheld the President's broad removal power over executive officers. However, in Humphrey's Executor v. United States, the Court distinguished between "purely executive" officers and those who exercise "quasi-legislative" and "quasi-judicial" functions. The Court held that officers with quasi-legislative or quasi-judicial functions could be protected by Congress through "for cause" removal restrictions, as it was not essential for the President's proper execution of powers that these agencies be headed by individuals removable at will.

In summary, the President's removal power is a critical tool for ensuring the faithful execution of laws, but it is not unlimited. Congress and the courts have placed restrictions on this power to protect the independence of certain agencies and officers with quasi-legislative or quasi-judicial functions. These checks and balances help maintain a separation of powers and prevent the concentration of power in the executive branch.

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