Congressional Encroachments
and Relinquishments
SoP analysis of legislative acts
1
Types of SoP Analyses
• Traditional themes
– usurpation
• congress performs executive or judicial function
• Ex: US v. Klein
– interference
• congress obstructs executive or judicial function
• Ex: Plaut v. Spendthrift
• Additional Themes
– exercise of legislative power
– delegation of legislative power
2
Exercise of Legislative Power
Chadha v. INS (legislative veto)
• Who is acting
–single house of congress
• What function is it performing
–judicial review?
–executive function?
–legislative function?
3
Structural Limits on Legislative Power
• Bicameralism
–Text
• Art. I, § 7, ¶ 2: “Every Bill which shall have passed
the House of Representatives and the Senate ...”
• Art. I, § 7, ¶ 3: “Every Order, Resolution, or Vote to
which the Concurrence of the Senate and House of
Representatives may be necessary ...”
–Theory
• Framers feared legislative branch the most
• Division within branch helps avoid majority tyranny
4
Structural Limits on Congress (cont.)
• Presentment
–Text
• Art. I, § 7, ¶ 2: “Every Bill ... shall, before it
becomes a Law, be presented to the President. If
he approve he shall sign it, but if not he shall
return it, with his Objections ...”
• Art. I, § 7, ¶ 3: “Every Order ... shall be presented to
the President, and before the Same shall take
Effect, shall be approved by him ...”
–Theory
• Fear of legislative authority => executive as check
5
Which Youngstown Standard Should
be Applied to Congress?
• Black ?
– strict SoP
• B&P must be satisfied in every case where Congress
legislates; i.e., where it alters rights/responsibilities
• Jackson ?
– structural SoP (Zone 1)
• B&P satisfied in initial bill (creating legislative veto);
exec. & leg. branches are cooperating
• Frankfurter ?
– flexible SoP (gloss of life)
• admin agencies are indispensible to governing. Congress should be able to check its delegated power 6
Standard of Review for Congress
• Black’s Strict Structural Limits
– B&P required for all cong’l actions of
legislative character
• Result
– no legislative veto
– joint resolution ok (because of presentment)
– concurrent resolution only for
• actions not having force of law (e.g., expressing
sentiment or will of congress)
• where presentment not required in first place
– War Powers Resolution?
7
Cong’l Options w/o Bicam/Present.
• Oversight
– Hearings / inquiry into agency operations
• New legislation
– tighten up the reigns on agency discretion
• Budgetary constraints
– limit agency funds / threaten shut down
• Create private rights of action
– authorize individuals to seek judicial review
• impeded by S.Ct. decision in Lujan v. Defenders
8
Delegation of Legislative Power
Clinton v. NY (Line Item Veto)
• Operation
– Line Item Veto Act,
• 2 U.S.C. § 691: the President may, with respect to any
bill or joint resolution that has been signed into law
pursuant to Article I, section 7, cancel in whole-– (1) any dollar amount of discretionary budget authority;
– (2) any item of new direct spending; or
– (3) any limited tax benefit;
• § 691(b): Cancellation becomes “null & void” if
overriden by Disapproval Bill
• Reverse SoP Problem
– excessive cooperation, not encroachment
9
Justifications for Line Item Veto
• LIV is merely a delegation of power to Executive
– to decline to spend (as President sees fit)
• valid only pursuant to “prescribed standard” (cong. policy)
• President may have impoundment power (Train v. NYC):
• LIV is simply package of separate spending bills
– each of which President could have vetoed
• reality of budget process is mutuality / reciprocity
– practicality not a concern - Court employs strict
formalist test
10
Clinton v. NY
• Cancelled appropriations
– Bal. Budget Act of 1997: $2.6B medicare funds to
New York
– Taxpayer Relief Act of 1997: corporate tax benefit
• LIV violates Presentment Clause
– President has amended two Acts of Congress
• by repealing a portion of each.
– Cancellation not the same as "return" of a bill
• Return (regular veto) prevents a bill from becoming
law
• Cancellation effective only after the bill becomes law
11
SoP Principles in LIV
• Strict Formalism
– idealized vision of political process (Kennedy)
– resurrects non-delegation doctrine
• SoP not violated in traditional manner
– LIV is practical mechanism for complex spending
– Jackson in Youngstown:
– Doesn’t usurp or aggrandize any branch’s powers
12
Delegation of Leg Power to Judiciary
Mistretta v. US (Sentencing Comm’n)
• Unlike Clinton where core legislative function
was delegated.
– sentencing is traditionally a mixture of legislative
policy and judicial discretion
– this delegation accompanied by specific guidelines
• Undermine judicial integrity or independence?
– non-judicial administrative or legislative duties may
not be imposed
• See Scalia dissent: this is pure lawmaking
– Majority: judges engage in rule-making all the time
• promulgating rules of procedure
• making common law
13