CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 19: Executive Power: To What Extent Can Congress
Increase Executive Power by Giving Powers Not in Constitution?
I.
Central Themes: Executive Powers and Limits on Executive
Powers – formalist vs. functionalist interpretation; differing
views on separation of powers where political branches agree
to increase executive powers
II.
Limits on Executive (and Legislative Power)
A.
Can Congress expand Presidential powers beyond those in
the Constitution?: The Line-Item Veto
i. Clinton v. City of New York (1998) [C p. 288]
ii. Note that the Line-Item Veto Act of 1996 was initially
challenged by six congressmen before Clinton ever used the
line-item veto power, but the Supreme Court held they
lacked standing in Raines v. Byrd, 521 U.S. 811 (1997).
Court distinguished Powell case; this claim was based on
loss of political power, not any private right and was thus
insufficiently personal and concrete to give rise to an Article
III “case or controversy.”
iii. Clinton v. City of New York involved a second challenge
to the law. How did Clinton use the law and who challenged
this use?
iv. Compare formalism of majority opinion by Stevens
(joined by Rehnquist, Souter, Kennedy, Ginsburg, Thomas)
with functionalist approach of Breyer in dissent (joined by
O’Connor and Scalia). Also, compare their views on
separation of powers.
v. Legislative Line-Item Veto Act of 2006 (passed House of
Representatives, killed in Senate). This bill gave the
President the power to put spending line-items on hold and
can send the legislation to Congress for a vote on rescinding
the line-item, which Congress can do by a simple majority.
The legislation ensured that Congress would have to act by
requiring it to do so within a set time frame and requiring it
to consider the “vetoed” items on an up and down basis;
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also prohibited filibustering on a “veto package.” Would this
proposal be constitutional?
vi. Note that most (more than 40) state governors do have a
line-item veto power
B.
Can Congress Increase Executive Power by Delegating
Legislative Powers to Administrative Agencies?
i. Nondelegation Doctrine: What is it? Constitutional basis:
Art. I § 1 – vests “a]ll legislative Poewrs herein granted . . .
in a Congress of the United States.” When has the Court
struck down legislation or regulations on the basis of the
non-delegation doctrine?
a. Panama Refining Co. v. Ryan (1935) (the “Hot
Oil Case”) [C p. 294] Why was section 9(c) of
NIRA unconstitutional?
b. Schechter Poultry Corp. v. United States (1935)
(the “Sick Chicken Case” – see Class 9
Commerce Clause I) [C p. 293] why was section
3 of the NIRA unconstitutional?
ii. What is the current status of the nondelegation doctrine
in our modern Adminstrative State – see, e.g., Court’s
unanimous decision in Whitman v. American Trucking
Ass’n, Inc. (2001) [C p. 296]: Constitution does not permit
delegation of legislative powers, but congress can confer
delegation of decision-making authority to administrative
agencies so long as Congress “lay[s] down by legislative act
an intelligible principle to which the person or body
authorized to [act] is directed to conform.” [opinion by
Scalia]
iii. It is possible, but very unlikely, that a future court could
strike down a federal law as an unconstitutional delegation
of legislative power to an administrative agency because of a
lack of intelligible principles.
C.
Can Congress Check Administrative Agencies By the Use
of the Legislative Veto? Developed in the 1930s
i. Could be unicameral or bicameral.
ii. Very common: hundreds of laws contained legislative
vetoes.
iii. Is a legislative veto constitutional? INS v. Chadha (1983)
[C p. 299](compare formalist and functionalist approach of
majority opinon by Burger (joined by Brennan, Marshall,
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O’Connor, Blackmun, Stevens) and dissent by White).
Powell concurred and Rehnquist also dissented.
iv.
Relevant constitutional text requiring presentment
and bicameralism:
 Art. I § 1 All legislative Powers herein granted shall
be vested in a Congress of the United States, which
shall consist of a Senate and a House of
Representatives;
 Art. I § 7 cl. 2 Every Bill which shall have passed
the House of Representatives and Senate, shall,
before it become a Law, be presented to the
President of the United States;
 Art. I § 7 cl. 3 Every Order, Resolution, or Vote to
which the Concurrence of the Senate and House of
Representatives may be necessary . . . shall be
presented to the President of the United States.”
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