April 12, 2005

Congress President Federal Court
Legislative Strict
Formalism
Flexible &
Functional
Executive Forbidden Anything goes
Judicial
Strict in theory; loose in practice
Rare
Forbidden Generous Per Art. III
Fall, 2004 con Law I - Manheim 2

All 3 branches exercise some legis. Power

When done by executive/judicial, must be incidental to primary functions


When done by congress, must be according to form prescribed in constitution
Who is acting
(1983)
These are the questions to be asked in every
SoP analysis
 Art. I branch (single house of congress)

What function is it performing
Fall, 2004 con Law I - Manheim 3

(1983)

What function was INS performing?

What function is Congress performing?
 judicial review?
Can never do this
 executive function?
 legislative function?
Can never do this
But only if it satisfies
Bicameralism & Presentment
Can only do this
Fall, 2004 con Law I - Manheim 4

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
Fall, 2004 con Law I - Manheim 5

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
Fall, 2004 con Law I - Manheim 6

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
Fall, 2004 con Law I - Manheim 7

Black’s Strict Structural Limits



B&P required for all cong’l actions of legislative character
Excluding:
 Impeachment
 Advise & consent on appointments & treaties
Why is it ok for executive branch to perform quasi-legislative functions (w/o procedural safeguards), but not ok for Congress to review?
 White: Leg. Veto is indispensible to modern gov’t

It is a means of defense, not a sword to aggrandize Cong.
Fall, 2004 con Law I - Manheim 8



 no legislative veto joint resolution ok (because of presentment)
 Joint resolutions are functionally equivalent to bills
 Except joint resolution proposing const’l amendment 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
Fall, 2004 con Law I - Manheim 9

Oversight

Hearings into agency operations
New legislation
 reduce 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
Fall, 2004 con Law I - Manheim 10