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; 1 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, 2 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.” 3