ENVIRONMENTAL LAW
ASSIGNMENT 4
The Constitution and the Environment:
An Introduction to the Separation of Powers
“It is agreed on all sides, that the powers properly belonging to one of the
departments, ought not to be directly and compleatly administered by
either of the other departments. It is equally evident, that neither of them
ought to possess directly or indirectly, an overruling influence over the
others in the administration of their respective powers. It will not be
denied, that power is of an encroaching nature, and that it ought to be
effectually restrained from passing the limits assigned to it. After
discriminating therefore in theory, the several classes of power, as they
may in their nature be legislative, executive, or judiciary; the next and
most difficult task, is to provide some practical security for each against
the invasion of the others. What this security ought to be, is the great
problem to be solved.”
The Federalist Papers, No. 48 (Madison).
Reading:
Whitman v. American Trucking Associations
CAA §§ 108(a) & 109 (42 U.S.C. §§ 7408(a) & 7409)
Notes and Questions:
1.
According to Article I, Section 1, of the Constitution, “All legislative Powers herein
granted shall be vested in a Congress of the United States, which shall consist of a Senate and
House of Representatives.” Article I, Section 8 provides inter alia that the “Congress shall have
Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States; . . . To regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes; . . . And To make all
Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.”
Article II, Section 1 declares that “[t]he executive Power shall be vested in a President of
the United States of America.” Article II, Section 3 then directs inter alia that the President
“shall take Care that the Laws be faithfully executed.”
1
Article III, Section 1 states that “[t]he judicial Power of the United States shall be vested
in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain
and establish.” Article III, Section 2 then explains that the “judicial Power shall extend [inter
alia] to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their Authority.”
The first three articles of the Constitution thus create a federal government of limited and
divided powers. As the Supreme Court has explained, these two principles are fundamental:
The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James
Madison wrote, "the powers delegated by the proposed Constitution to the federal government are
few and defined. Those which are to remain in the State governments are numerous and
indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally
mandated division of authority "was adopted by the Framers to ensure protection of our
fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks
omitted). "Just as the separation and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal Government will reduce the risk of tyranny
and abuse from either front." Ibid.
United States v. Lopez, 514 U.S. 549, 552 (1995).
2.
law:
Article I, Section 7 of the Constitution establishes the rules by which a bill may become
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States: If he approve he shall sign it,
but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with
the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by
two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses
shall be determined by yeas and Nays, and the Names of the Persons voting for and against the
Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned
by the President within ten Days (Sundays excepted) after it shall have been presented to him, the
Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.
3.
In Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the Supreme
Court addressed the bicameralism and presentment clause requirements. The Court held
unconstitutional section 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2),
which authorized either House of Congress, by majority resolution, to overturn by resolution an
INS decision to allow a deportable alien to remain in the United States.
2
Writing for a six-person majority, Chief Justice Burger explained the essential purposes
of Article I, Section 7 in a system of divided and limited government:
The Presentment Clauses
The records of the Constitutional Convention reveal that the requirement that all
legislation be presented to the President before becoming law was uniformly accepted by the
Framers. Presentment to the President and the Presidential veto were considered so imperative
that the draftsmen took special pains to assure that these requirements could not be circumvented.
During the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that it might easily
be evaded by the simple expedient of calling a proposed law a "resolution" or "vote" rather than a
"bill." 2 Farrand 301-302. As a consequence, Art. I, § 7, cl. 3 was added. 2 Farrand 304-305.
The decision to provide the President with a limited and qualified power to nullify
proposed legislation by veto was based on the profound conviction of the Framers that the powers
conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt
that lawmaking was a power to be shared by both Houses and the President. In The Federalist
No. 73 (H. Lodge ed. 1888), Hamilton focused on the President's role in making laws:
"If even no propensity had ever discovered itself in the legislative body to invade the
rights of the Executive, the rules of just reasoning and theoretic propriety would of
themselves teach us that the one ought not to be left to the mercy of the other, but ought
to possess a constitutional and effectual power of self-defence."
***
The President's role in the lawmaking process also reflects the Framers' careful efforts to
check whatever propensity a particular Congress might have to enact oppressive, improvident, or
ill-considered measures. The President's veto role in the legislative process was described later
during public debate on ratification:
"It establishes a salutary check upon the legislative body, calculated to guard the
community against the effects of faction, precipitancy, or of any impulse unfriendly to
the public good, which may happen to influence a majority of that body.
". . . The primary inducement to conferring the power in question upon the Executive is,
to enable him to defend himself; the secondary one is to increase the chances in favor of
the community against the passing of bad laws, through haste, inadvertence, or design."
The Federalist No. 73 (A. Hamilton).
See also The Pocket Veto Case, 279 U.S. 655, 678 (1929); Myers v. United States, 272 U.S. 52,
123 (1926). The Court also has observed that the Presentment Clauses serve the important
purpose of assuring that a "national" perspective is grafted on the legislative process:
"The President is a representative of the people just as the members of the Senate and of
the House are, and it may be, at some times, on some subjects, that the President elected
by all the people is rather more representative of them all than are the members of either
3
body of the Legislature whose constituencies are local and not countrywide . . . ."
Meyers v. United States, supra, at 123.
Bicameralism
The bicameral requirement of Art. I, § 7, was of scarcely less concern to the Framers than
was the Presidential veto and indeed the two concepts are interdependent. By providing that no
law could take effect without the concurrence of the prescribed majority of the Members of both
Houses, the Framers reemphasized their belief, already remarked upon in connection with the
Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully
considered by the Nation's elected officials. In the Constitutional Convention debates on the need
for a bicameral legislature, James Wilson, later to become a Justice of this Court, commented:
"Despotism comes on mankind in different shapes. Sometimes in an Executive,
sometimes in a military, one. Is there danger of a Legislative despotism? Theory &
practice both proclaim it. If the Legislative authority be not restrained, there can be
neither liberty nor stability; and it can only be restrained by dividing it within itself, into
distinct and independent branches. In a single house there is no check, but the inadequate
one, of the virtue & good sense of those who compose it." 1 Farrand 254.
Hamilton argued that a Congress comprised of a single House was antithetical to the very
purposes of the Constitution. Were the Nation to adopt a Constitution providing for only one
legislative organ, he warned:
"[We] shall finally accumulate, in a single body, all the most important prerogatives of
sovereignty, and thus entail upon our posterity one of the most execrable forms of
government that human infatuation ever contrived. Thus we should create in reality that
very tyranny which the adversaries of the new Constitution either are, or affect to be,
solicitous to avert." The Federalist No. 22, p. 135 (H. Lodge ed. 1888).
This view was rooted in a general skepticism regarding the fallibility of human nature
later commented on by Joseph Story:
"Public bodies, like private persons, are occasionally under the dominion of strong
passions and excitements; impatient, irritable, and impetuous. . . . If [a legislature] feels
no check but its own will, it rarely has the firmness to insist upon holding a question long
enough under its own view, to see and mark it in all its bearings and relations on society."
1 Story, supra, at 383-384.
These observations are consistent with what many of the Framers expressed, none more
cogently than Madison in pointing up the need to divide and disperse power in order to protect
liberty:
"In republican government, the legislative authority necessarily predominates. The
remedy for this inconveniency is to divide the legislature into different branches; and to
render them, by different modes of election and different principles of action, as little
connected with each other as the nature of their common functions and their common
dependence on the society will admit." The Federalist No. 51, p. 324 (H. Lodge ed.
4
1888) (sometimes attributed to "Hamilton or Madison" but now generally attributed to
Madison).
However familiar, it is useful to recall that apart from their fear that special interests
could be favored at the expense of public needs, the Framers were also concerned, although not of
one mind, over the apprehensions of the smaller states. Those states feared a commonality of
interest among the larger states would work to their disadvantage; representatives of the larger
states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority
of the people. See 1 Farrand 176-177, 484-491. It need hardly be repeated here that the Great
Compromise, under which one House was viewed as representing the people and the other the
states, allayed the fears of both the large and small states.
We see therefore that the Framers were acutely conscious that the bicameral requirement
and the Presentment Clauses would serve essential constitutional functions. The President's
participation in the legislative process was to protect the Executive Branch from Congress and to
protect the whole people from improvident laws. The division of the Congress into two
distinctive bodies assures that the legislative power would be exercised only after opportunity for
full study and debate in separate settings. The President's unilateral veto power, in turn, was
limited by the power of two thirds of both Houses of Congress to overrule a veto thereby
precluding final arbitrary action of one person. It emerges clearly that the prescription for
legislative action in Art. I, § 7 represents the Framers' decision that the legislative power of the
Federal government be exercised in accord with a single, finely wrought and exhaustively
considered, procedure. [462 U.S. at 947-51.]
The Chief Justice then explained why the legislative veto is inconsistent with Article I,
Section 7:
The Constitution sought to divide the delegated powers of the new federal government
into three defined categories, legislative, executive and judicial, to assure, as nearly as possible,
that each Branch of government would confine itself to its assigned responsibility. The hydraulic
pressure inherent within each of the separate Branches to exceed the outer limits of its power,
even to accomplish desirable objectives, must be resisted.
Although not "hermetically" sealed from one another, Buckley v. Valeo, 424 U.S. 1, 121
((1976), the powers delegated to the three Branches are functionally identifiable. When any
Branch acts, it is presumptively exercising the power the Constitution has delegated to it. When
the Executive acts, he presumptively acts in an executive or administrative capacity as defined in
Art. II. And when, as here, one House of Congress purports to act, it is presumptively acting
within its assigned sphere.
Beginning with this presumption, we must nevertheless establish that the challenged
action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7, apply.
Not every action taken by either House is subject to the bicameralism and presentment
requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of
legislative power depends not on their form but upon "whether they contain matter which is
properly to be regarded as legislative in its character and effect." S. Rep. No. 1335, 54th Cong.,
2d Sess., 8 (1897).
5
Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it
was essentially legislative in purpose and effect. In purporting to exercise power defined in Art.
I, § 8, cl. 4, to "establish an uniform Rule of Naturalization," the House took action that had the
purpose and effect of altering the legal rights, duties, and relations of persons, including the
Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch.
Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to
deport an individual alien whose deportation otherwise would be canceled under § 244. The oneHouse veto operated in these cases to overrule the Attorney General and mandate Chadha's
deportation; absent the House action, Chadha would remain in the United States. Congress has
acted and its action has altered Chadha's status.
The legislative character of the one-House veto in these cases is confirmed by the
character of the congressional action it supplants. Neither the House of Representatives nor the
Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them
acting together, could effectively require the Attorney General to deport an alien once the
Attorney General, in the exercise of legislatively delegated authority, had determined the alien
should remain in the United States. Without the challenged provision in § 244(c)(2), this could
have been achieved, if at all, only by legislation requiring deportation. Similarly, a veto by one
House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards
set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. Amendment and repeal of
statutes, no less than enactment, must conform with Art. I.
***
The bicameral requirement, the Presentment Clauses, the President's veto, and Congress'
power to override a veto were intended to erect enduring checks on each Branch and to protect
the people from the improvident exercise of power by mandating certain prescribed steps. To
preserve those checks, and maintain the separation of powers, the carefully defined limits on the
power of each Branch must not be eroded. To accomplish what has been attempted by one House
of Congress in this case requires action in conformity with the express procedures of the
Constitution's prescription for legislative action: passage by a majority of both Houses and
presentment to the President. [462 U.S. at 951-54 & 957-58.]
4.
Although cases arising under the Bicameralism and Presentment Clauses are rare, the
Supreme Court recently denied certiorari in an interesting case in which the plaintiffs alleged that
Congress sent inconsistent bills to the President for his signature—one bill that passed the House
and a slightly different bill that passed the Senate. This litigation, Public Citizen v. U.S. District
Court, 486 F.3d 1342 (D.C. Cir.), cert. denied, 128 S.Ct. 823 (2007), is described in the
following article:
Supreme Court Upholds Budget Bill
N.Y. Times, Dec. 10, 2007
A consumer-rights group's challenge to a deficit reduction law ended Monday when the Supreme
Court let the law stand, even though the House and Senate never approved identical versions. The
6
justices, without comment, refused to disturb lower court rulings dismissing Public Citizen's lawsuit
contesting the validity of a $39 billion deficit-reduction bill that passed the House and Senate in slightly
differing versions.
The controversy arose in February 2006 after the House passed a version of the bill that was not
identical to the Senate-passed measure. Both houses of Congress were under Republican control at the
time. Ordinarily, one chamber would vote again to eliminate the discrepancy. But the vote in the House
was 216-214, too close to risk another vote. Republicans who were in charge in the House refused
Democrats' demands for a new vote. Instead, Republican leaders in the House and Senate signed off on
the legislation and sent it to President Bush, who signed it into law on Feb. 8.
The provision at issue involved how long Medicare pays for renting some types of durable
medical equipment. The Senate voted for 13 months, as intended by Senate and House negotiators, but a
Senate clerk erroneously put down 36 months in sending the bill back to House for a final vote. That's
what the House approved Feb. 1. By the time the bill was shipped to Bush, the number was back to 13
months as passed by the Senate.
Lower courts dismissed Public Citizen's lawsuit based upon a 1890 case in which the court held
that judges are obliged to accept as accurate legislation that has been signed by the leaders of both houses
of Congress. An occasional mistake, or even fraud, is better than the uncertainty that would flow from
routine questioning of bills passed by Congress, the court said then.
5.
In Clinton v. City of New York, 524 U.S. 417 (1998), the Court held that the Line Item
Veto Act of 1996, 110 Stat. 1200 (1996), 2 U.S.C. §§ 692 et seq., violated Article I, Section 7.
The case arose when the City of New York and the Snake River Potato Growers challenged
President Clinton’s cancellation of one provision in the Balanced Budget Act of 1997, Pub. L.
105-33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 10534, 111 Stat. 788, 895-96, 990-93. As described by Justice Stevens in his opinion of the Court:
The Line Item Veto Act gives the President the power to "cancel in whole" three types of
provisions that have been signed into law: "(1) any dollar amount of discretionary budget
authority; (2) any item of new direct spending; or (3) any limited tax benefit." * * *
The Act requires the President to adhere to precise procedures whenever he exercises his
cancellation authority. In identifying items for cancellation he must consider the legislative
history, the purposes, and other relevant information about the items. He must determine, with
respect to each cancellation, that it will "(i) reduce the Federal budget deficit; (ii) not impair any
essential Government functions; and (iii) not harm the national interest." Moreover, he must
transmit a special message to Congress notifying it of each cancellation within five calendar days
(excluding Sundays) after the enactment of the canceled provision. * * *
A cancellation takes effect upon receipt by Congress of the special message from the
President. If, however, a "disapproval bill" pertaining to a special message is enacted into law,
the cancellations set forth in that message become "null and void." The Act sets forth a detailed
expedited procedure for the consideration of a "disapproval bill." A majority vote of both Houses
is sufficient to enact a disapproval bill. The Act does not grant the President the authority to
7
cancel a disapproval bill, but he does, of course, retain his constitutional authority to veto such a
bill. [Id. at 436-37.]
In the Court’s judgment, the Line Item Veto Act was unconstitutional because
[i]n both legal and practical effect, the President has amended two Acts of Congress by repealing
a portion of each. "Repeal of statutes, no less than enactment, must conform with Art. I." INS v.
Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the
President to enact, to amend, or to repeal statutes. Both Article I and Article II assign
responsibilities to the President that directly relate to the lawmaking process, but neither
addresses the issue presented by these cases. The President "shall from time to time give to the
Congress Information on the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient . . . ." Art. II, § 3. Thus, he may initiate and
influence legislative proposals. Moreover, after a bill has passed both Houses of Congress, but
"before it becomes a Law," it must be presented to the President. If he approves it, "he shall sign
it, but if not he shall return it, with his Objections to that House in which it shall have originated,
who shall enter the Objections at large on their Journal, and proceed to reconsider it." Art. I, § 7,
cl. 2. His "return" of a bill, which is usually described as a "veto," is subject to being overridden
by a two-thirds vote in each House.
There are important differences between the President's "return" of a bill pursuant to
Article I, § 7, and the exercise of the President's cancellation authority pursuant to the Line Item
Veto Act. The constitutional return takes place before the bill becomes law; the statutory
cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the
statutory cancellation is of only a part. Although the Constitution expressly authorizes the
President to play a role in the process of enacting statutes, it is silent on the subject of unilateral
Presidential action that either repeals or amends parts of duly enacted statutes.
There are powerful reasons for construing constitutional silence on this profoundly
important issue as equivalent to an express prohibition. The procedures governing the enactment
of statutes set forth in the text of Article I were the product of the great debates and compromises
that produced the Constitution itself. Familiar historical materials provide abundant support for
the conclusion that the power to enact statutes may only "be exercised in accord with a single,
finely wrought and exhaustively considered, procedure." Chadha, 462 U.S. at 951. Our first
President understood the text of the Presentment Clause as requiring that he either "approve all
the parts of a Bill, or reject it in toto." What has emerged in these cases from the President's
exercise of his statutory cancellation powers, however, are truncated versions of two bills that
passed both Houses of Congress. They are not the product of the "finely wrought" procedure that
the Framers designed. [524 U.S. at 438-40.]
Justice Stevens concluded his opinion of the Court with the following observations:
[O]ur decision rests on the narrow ground that the procedures authorized by the Line Item
Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page
document that became "Public Law 105-33" after three procedural steps were taken: (1) a bill
containing its exact text was approved by a majority of the Members of the House of
Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into
8
law by the President. The Constitution explicitly requires that each of those three steps be taken
before a bill may "become a law." Art. I, § 7. If one paragraph of that text had been omitted at
any one of those three stages, Public Law 105-33 would not have been validly enacted. If the
Line Item Veto Act were valid, it would authorize the President to create a different law—one
whose text was not voted on by either House of Congress or presented to the President for
signature. Something that might be known as "Public Law 105-33 as modified by the President"
may or may not be desirable, but it is surely not a document that may "become a law" pursuant to
the procedures designed by the Framers of Article I, § 7, of the Constitution.
If there is to be a new procedure in which the President will play a different role in
determining the final text of what may "become a law," such change must come not by legislation
but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 837, 131 L. Ed. 2d 881, 115 S. Ct. 1842 (1995). [524 U.S.
at 448-49.]
6.
One of former President Bush’s most controversial acts (I realize this is saying a lot) was
the assertion that neither he nor Executive Branch agencies were required to follow or to
implement certain provisions of statutes that the President signed into law. Critics claimed that
the President sought to wield an extraconstitutional line item veto. As the following articles
illustrate, this issue arose in two separate contexts:
Robert Pear, Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills
N.Y. Times, July 4, 2006
The American Bar Association said Sunday that President Bush was flouting the
Constitution and undermining the rule of law by claiming the power to disregard selected
provisions of bills that he signed. In a comprehensive report, a bipartisan 11-member panel of the
bar association said Mr. Bush had used such ''signing statements'' far more than his predecessors,
raising constitutional objections to more than 800 provisions in more than 100 laws on the ground
that they infringed on his prerogatives. These broad assertions of presidential power amount to a
''line-item veto'' and improperly deprive Congress of the opportunity to override the veto, the
panel said.
In signing a statutory ban on torture and other national security laws, Mr. Bush reserved
the right to disregard them. The bar association panel said the use of signing statements in this
way was ''contrary to the rule of law and our constitutional system of separation of powers.''
From the dawn of the Republic, it said, presidents have generally understood that, in the words of
George Washington, a president ''must approve all the parts of a bill, or reject it in toto.'' If the
president deems a bill unconstitutional, he can veto it, the panel said, but ''signing statements
should not be a substitute for a presidential veto.''
The panel's report adds momentum to a campaign by scholars and members of Congress
who want to curtail the use of signing statements as a device to augment presidential power. At a
recent hearing of the Senate Judiciary Committee, the chairman, Arlen Specter, Republican of
Pennsylvania, said Mr. Bush seemed to think he could ''cherry-pick the provisions he likes and
exclude the ones he doesn't like.'' Senator Patrick J. Leahy of Vermont, the senior Democrat on
9
the committee, said the signing statements were ''a diabolical device'' to rewrite laws enacted by
Congress.
Justice Department officials dismiss such criticism as unjustified. ''President Bush's
signing statements are indistinguishable from those issued by past presidents,'' said Michelle E.
Boardman, a deputy assistant attorney general. ''He is exercising a legitimate power in a
legitimate way.''
Michael S. Greco, the president of the bar association, who created the study panel, said
its report highlighted a ''threat to the Constitution and to the rule of law.'' At its annual meeting
next month, in Hawaii, the association will consider several policy recommendations, including a
proposal for judicial review of signing statements. The panel said, ''Our recommendations are not
intended to be, and should not be viewed as, an attack on President Bush.'' The panel said it was
equally concerned about the precedents being set for future chief executives.
The panel acknowledged that earlier presidents, including Andrew Jackson, Ulysses S.
Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally asserted the right to
disregard provisions of a law to which they objected. Under Bill Clinton, the Justice Department
told the White House that the president could ''decline to execute unconstitutional statutes.'' But
the panel said that Mr. Bush had expressed his objections more forcefully, more often and more
systematically, ''as a strategic weapon'' to influence federal agencies and judges.
In his first term, the panel said, Mr. Bush raised 505 constitutional objections to new
laws. On 82 occasions, he asserted that he alone could supervise, direct and control the
operations of the executive branch, under a doctrine known as the ''unitary executive.''
Whenever Congress directs the president to furnish information, Mr. Bush reserves the right to
withhold it. When Congress imposes mandates and requirements on the executive branch, the
president often says he will read them as advisory or ''precatory.'' When Congress tries to define
foreign policy—for example, on Russia, Syria, North Korea or Sudan—Mr. Bush objects. Even
if he agrees with the policy, he asserts that the Congressional directives ''impermissibly interfere
with the president's constitutional authority'' to conduct foreign affairs.
Whenever Congress prescribes qualifications for presidential appointees, Mr. Bush
complains that this is an intrusion on his power, even if Congress merely requires that the
appointee know about the field for which he will be responsible. When Congress requires
outreach or affirmative action for women or members of certain racial or ethnic groups, the
president demurs, saying such provisions must be carried out ''in a manner consistent with the
requirements of equal protection under the Due Process Clause of the Fifth Amendment to the
Constitution.''
The panel said Mr. Bush's signing statements often used the same formulaic language,
with ''no citation of authority or detailed explanation.'' It urged Congress to pass a law requiring
the president to ''set forth in full the reasons and legal basis'' for any signing statement in which he
says he can disregard or decline to enforce a statute.
In another recommendation, the panel suggested legislation to provide for judicial review
of signing statements. It acknowledged that the Supreme Court had been reluctant to hear cases
filed by members of Congress because lawmakers generally did not suffer the type of concrete
10
personal injury needed to create a ''case or controversy.'' But the panel said that ''Congress as an
institution or its agents'' should have standing to sue when the president announces he will not
enforce parts of a law.
The issue has deep historical roots, the panel said, noting that Parliament had condemned
King James II for non-enforcement of certain laws in the 17th century. The panel quoted the
English Bill of Rights: ''The pretended power of suspending of laws, or the execution of laws, by
regal authority, without consent of Parliament, is illegal.''
The panel was headed by Neal R. Sonnett, a criminal defense lawyer in Miami. Members
include former Representative Mickey Edwards, Republican of Oklahoma; Bruce E. Fein, a
Justice Department official in the Reagan administration; Harold Hongju Koh, the dean of Yale
Law School; William S. Sessions, a former director of the Federal Bureau of Investigation;
Kathleen M. Sullivan, a former dean of Stanford Law School; and Patricia M. Wald, former chief
judge of a federal appeals court.
Peter Baker, Bush Threatens to Cancel Earmarks
Washington Post, Dec. 21, 2007
President Bush threatened Thursday to cancel thousands of pet projects that Congress inserted
into a massive spending bill before leaving town this week, a move that could provoke a fierce battle with
lawmakers in both parties who jealously guard their ability to steer money to favored purposes. At an
end-of-the-year news conference, Bush chastised Democratic leaders for failing to live up to their
campaign promise to curb so-called earmarks and said he has ordered his budget director "to review
options for dealing with the wasteful spending in the omnibus bill." Aides later said those options would
include simply disregarding earmarks not included in binding legislative language.
***
In making his last extensive appearance before leaving for a holiday at Camp David and his
Crawford, Texas, ranch, Bush offered a mixed assessment of his first year with the opposition in charge
of both houses of Congress. He praised lawmakers for a spurt of legislation in recent days, calling this "a
moment that the country can be proud of" and saying everyone deserved credit. "I'm pleased that we have
been able to end this year on a high note by moving beyond our differences and achieving important
results for the American people," he said.
His sharp message on earmarks, though, stirred consternation on Capitol Hill and excitement
among fiscal conservatives. Calling Congress irresponsible for lumping 11 spending bills into a single
1,400-page measure nearly three months into the fiscal year, he also said, "Another thing that's not
responsible is the number of earmarks that Congress included." While Congress "made some progress"
curbing pet projects, he said, "they have not made enough progress." Bush said he asked Jim Nussle,
director of the Office of Management and Budget, to present him with possible actions to take, although
he would not elaborate. One option, aides said, would be to ignore the vast majority of earmarks that are
included only in conference reports rather than in the appropriations bill itself. Although traditionally
honored, language in such reports is not legally binding.
11
"There's always been an opportunity for the president to issue an executive order essentially
canceling most of the earmarks," said Brian Riedl, a Heritage Foundation scholar who issued a memo
outlining ways to do so. "Generally, it's been perceived as a declaration of nuclear war for the president
not to spend congressional earmarks. But with more than 11,000 of them, it seems like the president
might consider it time."
Under such a scenario, the appropriated money would still be spent on the purpose in the bill, but
not necessarily on the intended recipient. Critics complain earmarks are a way to funnel money to
projects or organizations without a review of the merits. Another option Bush aides said they are
reviewing is interpreting vaguely worded earmarks in a different way from what their sponsors intended.
"Certainly, those are all options, and there are probably some more options," said OMB spokesman Sean
Kevelighan. But he cautioned that Bush will not necessarily follow through on them. Nussle will "make
some recommendations and those recommendations may or may not entail taking some action."
According to a preliminary count by Taxpayers for Common Sense, a group that fights earmarks,
the giant spending bill sent to Bush included 8,983 projects worth $7.4 billion. A separate Defense
Department spending bill signed by Bush included 2,162 more earmarks worth $7.9 billion. That brings
the total to 11,145 worth $15.3 billion, although the group is still counting and the number will probably
rise. The White House uses higher estimates, while Congress uses lower ones.
When the counting is done, this year's earmarks will probably be about 25 percent less costly than
the all-time high in 2005, according to Steve Ellis, vice president of Taxpayers for Common Sense.
"From our perspective, it's a step in the right direction. Would we have liked to see a bigger step? Yes. ...
The critical question will be do they continue to take steps next year and the year after next."
Charlie Savage, Bush Declares Exceptions to Sections of Two Bills He Signed Into Law
N.Y. Times, Oct. 14, 2008
President Bush asserted on Tuesday that he had the executive power to bypass several parts of
two bills: a military authorization act and a measure giving inspectors general greater independence from
White House control. Mr. Bush signed the two measures into law. But he then issued a so-called signing
statement in which he instructed the executive branch to view parts of each as unconstitutional constraints
on presidential power.
In the authorization bill, Mr. Bush challenged four sections. One forbid the money from being
used “to exercise United States control of the oil resources of Iraq”; another required negotiations for an
agreement by which Iraq would share some of the costs of the American military operations there. The
sections “purport to impose requirements that could inhibit the president’s ability to carry out his
constitutional obligations,” including as commander in chief, Mr. Bush wrote.
In the other bill, he raised concerns about two sections that strengthen legal protections against
political interference with the internal watchdog officials at each executive agency.
One section gives the inspectors general a right to counsels who report directly to them. But Mr. Bush
wrote in his signing statement that such lawyers would be bound to follow the legal interpretations of the
politically appointed counsels at each agency. The other section requires the White House to tell
Congress what each inspector general said about the administration’s budget proposal for their offices.
12
Such a requirement, Mr. Bush wrote, would infringe on “the president’s constitutional authority” to
decide what to recommend to Congress.
Mr. Bush will not submit another budget request before his administration ends in January, so his
objections are unlikely to face a test on his watch. Still, the bill’s sponsor, Representative Jim Cooper,
Democrat of Tennessee, said he hoped that the next president would overturn Mr. Bush’s signing
statements. “These things create uncertainty in the law that should not be there,” Mr. Cooper said.
The White House has defended Mr. Bush’s use of signing statements as lawful and appropriate.
But in 2006, the American Bar Association called the device “contrary to the rule of law and our
constitutional system of separation of powers.” Mr. Bush has used the signing statements to assert a right
to bypass more than 1,100 sections of laws. By comparison, all previous presidents combined challenged
about 600 sections of bills.
7.
President Obama also has used the presidential signing statement to declare non-binding
provisions in legislation that he deems to be unconstitutional:
Charlie Savage, Obama Issues Signing Statement With Public Lands Bill
N.Y. Times, The Caucus, March 30, 2009
President Obama on Monday issued a signing statement claiming that he can bypass a
law that limits his power to appoint members to a government commission that manages
historical and economic issues along the Erie Canal. In the signing statement—instructions to the
executive branch about how to interpret a new law—Mr. Obama asserted that a provision of
Omnibus Public Lands Management Act of 2009, which he signed on Monday, was
unconstitutional and so he did not need to enforce or obey it as written.
The provision made changes to a law governing the Erie Canalway National Heritage
Corridor Commission, which Congress created at the end of the Clinton administration to handle
matters concerning the 19th Century waterway. One part of the provision says the Interior
Secretary must appoint members to the commission “based on recommendations from each
member of the House of Representatives” whose district encompasses the canal corridor.
But in his signing statement, Mr. Obama said that it would be unconstitutional to force
him or his Cabinet secretary to limit their appointment choices to a list pre-approved by
individual members of Congress. “Because it would be an impermissible restriction on the
appointment power to condition the Secretary’s appointments on the recommendations of
members of the House, I will construe these provisions to require the Secretary to consider such
congressional recommendations, but not to be bound by them in making appointments to the
Commission,” Mr. Obama declared.
The release of the document marked the second time since Mr. Obama took office that he
has issued a signing statement challenging the constitutionality of new laws. Earlier this month,
he challenged dozens of provisions in a $410 billion omnibus spending bill. Although presidents
have occasionally issued such signing-statements since the 19th century, the practice became
controversial under former President George W. Bush, who used the device to advance
13
contentious theories of executive power and challenged more provisions restricting his authority
than all predecessors combined.
Mr. Obama has been sharply critical of Mr. Bush’s use of signing statements, calling it an
“abuse.” As president, he has said he will only invoke “legitimate” interpretations of the
Constitution when challenging provisions of bills he is enacting into law.
Charlie Savage, Obama Takes New Route to Opposing Parts of Laws
N.Y. Times, Jan. 9, 2010
The Obama administration is lowering the volume in a long-running argument between Congress
and the executive branch over when, if ever, a president has the power to bypass federal statutes he has
signed into law. Legal scholars said the administration’s new approach, which avoids repeating claims of
executive power that the White House has previously voiced, could avoid setting off fights with
lawmakers. But the approach will make it harder to keep track of which statutes the White House believes
it can disregard, or to compare the number of laws challenged by President Obama with former President
George W. Bush’s record.
In Mr. Obama’s first months in office last year, he followed recent precedent and frequently
issued statements, when signing bills into law, that the executive branch could disregard provisions that
he considered unconstitutional restraints on executive power.
But Mr. Obama has not issued a signing statement since last summer, when one claim set off a
bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign
bills containing provisions it deems problematic without issuing a signing statement that challenges those
sections. Still, the administration will consider itself free to disregard new laws it considers
unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.
The White House disclosed its shift when asked why it had not put out a signing statement last
month, when Mr. Obama signed a $447 billion spending bill for 2010. It contained several provisions that
restricted executive power in ways that the administration had previously asserted were unconstitutional
— including in signing statements attached to similar bills and in policy statements it issued about the
spending bill as lawmakers drew it up. “The administration’s views about certain provisions in the
omnibus spending bill had previously been publicly communicated,” said Ben LaBolt, a White House
spokesman, “so it wasn’t necessary to duplicate them in a signing statement.”
Since the 19th century, presidents have occasionally used signing statements to declare that parts
of a bill were unconstitutional and need not be enforced or obeyed as written. But the tactic was rare until
the second term of President Ronald Reagan, whose legal team developed a strategy of issuing the
statements more frequently to increase presidential power. Reagan’s successors continued that approach.
And the practice escalated again under Mr. Bush, who used it to advance expansive theories of executive
power. He challenged about 1,200 sections of bills—more than all predecessors combined—including a
ban on torture and oversight provisions of the USA Patriot Act.
Mr. Bush’s assertive use of the tactic set off a national debate over its propriety. The American
Bar Association declared that signing statements “undermine the rule of law and our constitutional system
of separation of powers,” and argued that the Constitution gave presidents only two choices: veto a bill, or
14
sign it and obey all of it. But other scholars said the tactic was appropriate if a president cited only
mainstream legal theories. Mr. Obama, whose advisers sided with the latter camp, has characterized Mr.
Bush’s use of signing statements as an abuse and pledged greater restraint.
Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in
June, when his claim that he could disobey a new law requiring officials to push the World Bank and the
International Monetary Fund to adopt certain policies angered Congress. The White House sought to
reassure lawmakers that it intended to take those negotiating positions anyway and was merely noting its
view that Congress cannot control foreign negotiations. Many lawmakers rejected that theory, and the
House quickly voted 429 to 2 to bar officials from disobeying the restrictions.
Although the recent spending bill received no signing statement, it contained a similar provision
about World Trade Organization negotiations, as well as several other types the administration had
previously challenged. The White House issued several “statements of administration policy” warning
that those provisions raised constitutional concerns while the legislation was pending, but Congress did
not change them.
Representative Barney Frank, Democrat of Massachusetts, who led last summer’s backlash, said
the White House risked losing Congressional support for international economic organizations. Mr. Frank
also said it was “outrageous” to contend that if Congress disagreed with the administration’s opinion that
a provision would be unconstitutional, the president could sign the bill and disobey it. “They have a
legitimate right to tell us their constitutional concerns — that’s different from having a signing
statement,” Mr. Frank said. “Anyone who makes the argument that ‘once we have told you we have
constitutional concerns and then you pass it anyway, that justifies us in ignoring it’ — that is a
constitutional violation. Those play very different roles and you can’t bootstrap one into the other.”
But Peter M. Shane, an Ohio State University law professor, praised the approach as a step
toward a return to the “normalcy” of how presidents used signing statements through Reagan’s first term.
Mr. Shane has previously criticized the administration over its frequent early use of the device. Still, Jack
L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in
2003-04, argued that an approach of issuing fewer signing statements would “not be terribly
consequential” in practice because the executive branch could still override a provision that its legal team
later pronounces unconstitutional.
Last year the Obama administration disregarded a statute that forbid State Department officials to
attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included
that restriction in several recent bills. When Mr. Bush signed one such bill, he issued a signing statement
instructing officials to view the law as merely advisory, and they attended at least one such meeting on his
watch. By contrast, when Mr. Obama signed another bill with an identical provision, he did not
specifically single it out for challenge. But his administration later obtained an Office of Legal Counsel
opinion pronouncing it unconstitutional, and officials continued to attend such meetings.
Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr.
Goldsmith said the administration’s approach of issuing fewer signing statements would mean “somewhat
less accountability.” “I think it’s a bad development if they are not going to highlight for the nation in all
these new statutes where they think there are problems,” he said.
15
The White House, however, said it had given clear public notice about its views. “Each piece of
legislation,” Mr. LaBolt said, “is considered on an individual basis to determine whether a signing
statement is necessary, and communications regarding the administration’s views on legislation such as
Statements of Administration Policy will continue to be publicly available for Congress and all
Americans to evaluate.”
Charlie Savage, Obama Challenges Provisions in Budget Bill
N.Y. Times, Dec. 23, 2011
When President Obama signed a budget bill on Friday, he issued a signing statement claiming a
right to bypass dozens of provisions that placed requirements or restrictions on the executive branch,
saying he had “well-founded constitutional objections” to the new statutes. Among them, he singled out
two sections barring the use of money to transfer prisoners from the naval base at Guantánamo Bay,
Cuba, into the United States and limiting the ability of the government to transfer them to the custody or
control of foreign countries. Mr. Obama said he would apply them in a way that avoided infringing on his
powers, without any specific explanation of what that meant.
He also singled out 14 provisions that he said infringed upon his power to conduct foreign affairs.
One, for example, cut off certain aid to Afghanistan unless it was making progress in reducing corruption
and allowed women to consult on projects. “I have advised the Congress that I will not treat these
provisions as limiting my constitutional authorities in the area of foreign relations,” Mr. Obama wrote.
Signing statements were once obscure, but they became controversial under President George W.
Bush, who used them to advance sweeping theories of his own powers and challenged more provisions,
including a torture ban, than all previous presidents combined. His expanded use of the device brought
new attention to it, and the American Bar Association called upon Mr. Bush and all future presidents to
stop issuing signing statements and instead to veto bills if they had objections to parts of them.
As a presidential candidate, Mr. Obama said that he thought signing statements could be
legitimate if used with “restraint”—for instance, to clarify how an ambiguous law should be interpreted.
Mr. Obama’s use of signing statements has drawn scrutiny because as a presidential candidate, he
criticized Mr. Bush’s use of them and promised to exercise greater restraint if he were elected, including
by not issuing any that undermined the intent of Congress. But since taking office, Mr. Obama has
relaxed his criteria by defining “restraint” as meaning invoking only “well-founded” theories of the
powers the Constitution gives to the executive branch alone, meaning Congress may not infringe upon
them.
His challenges have at times drawn the ire of Congress, and for a period Mr. Obama had signaled
that he would not issue signing statements if he had already expressed his objections to similar provisions
on other occasions. But his statement on Friday repeated several objections.
For example, he challenged a provision forbidding the use of funds to pay the salaries of four White
House advisers, including the one who deals with the issue of climate change. He had challenged a nearly
identical provision in a spending bill in April.
In the same paragraph, he challenged a section forbidding the use of money to alter or delay the
transmission of a report by the Department of Homeland Security’s privacy officer. Those provisions, he
16
said, denied him “the assistance of senior advisers” and obstructed “my supervision of executive branch
officials in the execution of their statutory responsibilities.” Mr. Obama also cited his authority as
commander in chief in raising objections to a provision that requires 30-day advance notice to Congress
before any military exercises that will cost more than $100,000 in construction, as well as one that forbids
putting American forces under a foreign commander as part of a United Nations peacekeeping mission
unless a subordinate military official signs off.
He also objected to several sections requiring the executive branch to develop certain legislative
proposals, and to “numerous” provisions—which he did not identify specifically—that required the
approval of a Congressional committee before certain funds could be spent or transferred.
Mr. Obama may also soon issue another signing statement about the National Defense
Authorization Act of 2012, which has several disputed provisions about the handling of terrorism
suspects. Attorney General Eric H. Holder Jr. said this week that such a statement was likely.
Charlie Savage, Obama Disputes Limits on Detainee Transfers Imposed in Defense Bill,
N.Y. Times, Jan. 3, 2013
President Obama set aside his veto threat and late Wednesday signed a defense bill that imposes
restrictions on transferring detainees out of military prisons in Afghanistan and Guantanamo Bay, Cuba.
But he attached a signing statement claiming that he has the constitutional power to override the limits in
the law.
The move awakened a dormant issue from Mr. Obama’s first term: his broken promise to close
the Guantánamo prison. Lawmakers intervened by imposing statutory restrictions on transfers of
prisoners to other countries or into the United States, either for continued detention or for prosecution.
Now, as Mr. Obama prepares to begin his second term, Congress has tried to further restrict his ability to
wind down the detention of terrorists worldwide, adding new limits in the National Defense Authorization
Act of 2013, which lawmakers approved in late December.
The bill extended and strengthened limits on transfers out of Guantánamo to troubled nations like Yemen,
the home country of the bulk of the remaining low-level detainees who have been cleared for repatriation.
It also, for the first time, limited the Pentagon’s ability to transfer the roughly 50 non-Afghan citizens
being held at the Parwan prison at Bagram Air Base in Afghanistan at a time when the future of American
detention operations there is murky.
Despite his objections, Mr. Obama signed the bill, saying its other provisions on military
programs were too important to jeopardize. Early Thursday, shortly after midnight, the White House
released the signing statement in which the president challenged several of its provisions. For example, in
addressing the new limits on the transfers from Parwan, Mr. Obama wrote that the provision “could
interfere with my ability as commander in chief to make time-sensitive determinations about the
appropriate disposition of detainees in an active area of hostilities.” He added that if he decided that the
statute was operating “in a manner that violates constitutional separation of powers principles, my
administration will implement it to avoid the constitutional conflict” — legalistic language that means
interpreting the statute as containing an unwritten exception a president may invoke at his discretion.
Saying that he continued to believe that closing the Guantánamo prison was in the country’s
fiscal and national security interests, Mr. Obama made a similar challenge to three sections that limit his
17
ability to transfer detainees from Guantánamo, either into the United States for prosecution before a
civilian court or for continued detention at another prison, or to the custody of another nation.
It was not clear, however, whether Mr. Obama intended to follow through, or whether he was just
saber-rattling as a matter of principle. He made a similar challenge a year ago to the Guantánamo transfer
restrictions in the 2012 version of the National Defense Authorization Act, but — against the backdrop of
the presidential election campaign — he did not invoke the authority he claimed.
Several officials said that it was not certain, even from inside the government, what Mr. Obama’s
intentions were. While the signing statement fell short of a veto, they said its language appeared intended
to preserve some flexibility for the president to make a decision later about whether to make a new push
to close the Guantánamo prison amid competing policy priorities.
Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, which advocates closing
Guantánamo, criticized Mr. Obama for not vetoing the legislation despite his threat to do so. “The
administration blames Congress for making it harder to close Guantánamo, yet for a second year
President Obama has signed damaging Congressional restrictions into law,” she said. “The burden is on
Obama to show he is serious about closing the prison.” About 166 men remain at the prison.
Signing statements are official documents issued by a president when he signs bills into law that
instruct subordinates in the executive branch about how to carry out the new statutes. In recent decades,
starting with the Reagan administration, presidents have used the device with far greater frequency than in
earlier eras to claim a constitutional right to bypass or override new laws. The practice peaked under
President George W. Bush, who used signing statements to advance sweeping theories of presidential
power and challenged nearly 1,200 provisions over eight years — more than twice as many as all
previous presidents combined.
The American Bar Association has called on presidents to stop using signing statements, calling
the practice “contrary to the rule of law and our constitutional system of separation of powers.” A year
ago, the group sent a letter to Mr. Obama restating its objection to the practice and urging him to instead
veto bills if he thinks sections are unconstitutional.
As a presidential candidate, Mr. Obama sharply criticized Mr. Bush’s use of the device as an
overreach. Once in office, however, he said that he would use it only to invoke mainstream and widely
accepted theories of the constitutional power of the president.
In his latest signing statement, Mr. Obama also objected to five provisions in which Congress
required consultations and set out criteria over matters involving diplomatic negotiations about such
matters as a security agreement with Afghanistan, saying that he would interpret the provisions so as not
to inhibit “my constitutional authority to conduct the foreign relations of the United States.” Mr. Obama
raised concerns about several whistle-blower provisions to protect people who provide certain executive
branch information to Congress — including employees of contractors who uncover waste or fraud, and
officials raising concerns about the safety and reliability of nuclear stockpiles.
He also took particular objection to a provision that directs the commander of the military’s
nuclear weapons to submit a report to Congress “without change” detailing whether any reduction in
nuclear weapons proposed by Mr. Obama would “create a strategic imbalance or degrade deterrence”
relative to Russian stockpiles. The provision, Mr. Obama said, “would require a subordinate to submit
materials directly to Congress without change, and thereby obstructs the traditional chain of command.”
18
8.
An oft-quoted trope of constitutional law is that “the Congress makes the laws, and the
Executive enforces the laws.” Chadha establishes that the role for Congress in supervising the
executive agencies’ implementation and enforcement of the statutes Congress enacts is limited.
Congress may overturn or modify agency decisions and legal interpretations, but only by
amending the law consistent with the requirements of Article I, Section 7. In contrast, the
Executive’s authority to engage in “quasi-legislation” through statutory interpretation and
rulemaking is considerably broader. Whitman v. American Trucking Associations is the leading
case on this subject.
9.
What is the standard of judicial review adopted by the Supreme Court in American
Trucking to determine whether a federal statute unconstitutionally delegates legislative authority
to an Executive Branch department or agency? Does this standard provide an effective
safeguard?
10.
How does Justice Stevens’s analysis differ from that of Justice Scalia’s majority opinion?
Is one more realistic or honest than the other?
11.
What is the contemporary constitutional concern about excessive or improper delegation
from Congress to the Executive? Is it even necessary for the judiciary to intercede in separation
of powers disputes between the other two branches of the federal government?
12.
Conversely, do you agree with Justice Thomas that the Supreme Court historically has
been too deferential to Congress in reviewing questions of allegedly excessive delegation of
legislative authority to the Executive Branch?
13.
What is the purpose of sections 108(a) and 109(a) & (b) of the Clean Air Act? What are
the criteria that the Environmental Protection Agency must use (a) to decide what pollutants to
regulate; and (b) to establish the specific levels of pollution that may be present in the ambient
air? Do you agree with the Supreme Court that these criteria provide sufficient legislative
guidance so that the delegation of regulatory authority to EPA does not violate the separation of
powers?
14.
Why would Congress choose to create uniform, national ambient air quality standards,
rather than have the standards vary from state-to-state or from location-to-location? For
example, why should California—which has authority under the Clean Air Act to set stricter
emissions standards for motor vehicles—be subject to the same ambient air quality standards as,
say, Ohio or Mississippi? Why should the Bay Area standards be identical to those applicable to
the greater Los Angeles region?
15.
In Massachusetts v. EPA, 549 U.S. 479 (2007), the Supreme Court decided two questions
that are related to the delegation issue addressed in American Trucking: Does the Clean Air Act
grant EPA authority to regulate carbon dioxide, a principal greenhouse gas? If so, has EPA
19
violated the Clean Air Act by failing to establish new automobile emissions standards for CO2?
The case focused on section 202(a)(1) of the Act, which declares:
The Administrator shall by regulation prescribe . . . standards applicable to the emission
of any air pollutant from . . . new motor vehicles . . . which in his judgment cause, or
contribute to, air pollution which may reasonably be anticipated to endanger public health
or welfare.
Section 302(g) of the Clean Air Act defines “air pollutant” to mean “any air pollution agent or
combination of such agents, including any physical, chemical, biological, radioactive . . .
substance or matter which is emitted into or otherwise enters the ambient air.”
The Court held that EPA does have authority to regulate CO2 emissions from motor
vehicles, and it remanded the case to EPA to decide whether it is required to do so. EPA made
its endangerment finding on December 7, 2009. As we will study, this finding set in motion a
lengthy regulatory process by which EPA has begun to establish emissions limitations and other
mandates to control the levels of CO2 produced by motor vehicles, factories, refineries, and
thousands of other mobile and stationary sources within the jurisdiction of the United States.
16.
In response to the Supreme Court’s invalidation of the legislative veto in Chadha,
Congress enacted the Congressional Review Act of 1996, Pub. L. No. 104-121, 110 Stat. 857874, Subtitle E, codified at 5 U.S.C. §§ 801-808. The statute was part of former Speaker of the
House Newt Gingrich’s “Contract with America.” The Congressional Review Act requires all
federal departments and agencies to submit all final rules to Congress, and it grants Congress
sixty days to pass a joint resolution that would “disapprove” (i.e., invalidate) the rule.
[A]ll agencies promulgating a covered rule must submit a report to each House of Congress and
to the Comptroller General (CG) that contains a copy of the rule, a concise general statement describing
the rule (including whether it is deemed to be a major rule), and the proposed effective date of the rule. A
covered rule cannot take effect if the report is not submitted. Section 801(a)(1)(A). Each House must
send a copy of the report to the chairman and ranking minority member of each jurisdictional committee.
Section 801(a)(1)(C). In addition, the promulgating agency must submit to the CG (1) a complete copy of
any cost-benefit analysis; (2) a description of the agency’s actions pursuant to the requirements of the
Regulatory Flexibility Act and the Unfunded Mandates Reform Act of 1995; and (3) any other relevant
information required under any other act or executive order. Such information must also be made
“available” to each House. Section 801(a)(1)(B).
Section 804(3) adopts the definition of “rule” found at 5 U.S.C. 551(4) which provides that the
term rule “means the whole or part of an agency statement of general . . . applicability and future effect
designed to implement, interpret, or prescribe law or policy.” The legislative history of Section 551(4)
indicates that the term is to be broadly construed: “The definition of rule is not limited to substantive
rules, but embraces interpretive, organizational and procedural rules as well.” The courts have recognized
the breadth of the term, indicating that it encompasses “virtually every statement an agency may make,”
including interpretive and substantive rules, guidelines, formal and informal statements, policy
20
proclamations, employee manuals and memoranda of understanding, among other types of actions. Thus a
broad range of agency action is potentially subject to congressional review.
The Comptroller General and the Administrator of the Office of Information and Regulatory
Affairs (OIRA) of the Office of Management and Budget have particular responsibilities with respect to a
“major rule,” defined as a rule that will likely have an annual effect on the economy of $100 million or
more, increase costs or prices for consumers, industries or state and local governments, or have significant
adverse effects on the economy. The determination of whether a rule is major is assigned exclusively to
the Administrator of OIRA. Section 804(2). * * *
The designation of a rule as major also affects its effective date. A major rule may become
effective on the latest of the following scenarios: (1) 60 calendar days after Congress receives the report
submitted pursuant to Section 801(a)(1) or after the rule is published in the Federal Register; (2) if
Congress passes a joint resolution of disapproval and the President vetoes it, the earlier of when one
House votes and fails to override the veto, or 30 calendar days after Congress receives the veto message;
or (3) the date the rule would otherwise have taken effect (unless a joint resolution is enacted). Section
801(a)(3).
Thus the earliest a major rule can become effective is 60 calendar days after the later of the
submission of the report required by Section 801(a)(1) or its publication in the Federal Register, unless
some other provision of the law provides an exception for an earlier date. * * *
All other rules take effect “as otherwise allowed by law” after having been submitted to Congress
under Section 801(a)(1). Section 801(a)(4). Under the Administrative Procedure Act, a final rule may go
into effect 30 days after it is published in the Federal Register in final form. 5 U.S.C. 553(d). An agency,
in its discretion, may delay the effectiveness of a rule for a longer period; or it may put it into effect
immediately if good cause is shown.
All covered rules are subject to disapproval even if they have gone into effect. Congress has
reserved to itself a review period of at least 60 days. * * *
If a joint resolution of disapproval is enacted into law, the rule is deemed not to have had any
effect at any time. Section 801(f). If a rule that is subject to any statutory, regulatory or judicial deadline
for its promulgation is not allowed to take effect, or is terminated by the passage of a joint resolution, any
deadline is extended for one year after the date of enactment of the joint resolution. Section 803. A rule
that does not take effect, or is not continued because of passage of a disapproval resolution, may not be
reissued in substantially the same form. Indeed, before any reissued or new rule that is “substantially the
same” as a disapproved rule can be issued it must be specifically authorized by a law enacted subsequent
to the disapproval of the original rule. Section 801(b)(2).
Congressional Research Service, Congressional Review of Agency Rulemaking: An Update and
Assessment of the Congressional Review Act after a Decade 2-6 (2008).
According to Chadha, a joint resolution passed by Congress disapproving a rule must be
signed by the President or re-passed by a two-thirds majority of both Houses to override a
Presidential veto. Because of this constitutional requirement, it is not surprising that only
Congress has been able to overturn only one rule—a 2000 rule promulgated by the Occupational
21
Safety and Health Administration establishing ergonomic standards for places of employment.
The rule was adopted during the Clinton Administration, and President Bush signed the joint
resolution disapproving the rule in March 2001. See id. at 6-17.
17.
The introduction of joint resolutions in Congress to disapprove rules and other agency
actions has been increasingly directed at environmental regulation. The follow articles provide a
sampling of some of the most recent congressional proposals and attempts to block decisions
made by federal environmental and natural resources agencies:
Charlie Savage, Democrats Look for Ways to Undo Late Bush Administration Rules
N.Y. Times, Jan. 11, 2009
Democrats are hoping to roll back a series of regulations issued late in the Bush administration
that weaken environmental protections and other restrictions. Potential targets include regulations
allowing concealed weapons in some national parks and forbidding medical facilities that get federal
money from discriminating against doctors and nurses who refuse, on religious grounds, to assist with
abortions. “Congress is going to have to roll up its sleeves and review these midnight regulations,”
Senator Ron Wyden, Democrat of Oregon, said in an interview, “because it’s clear that they are part of a
desire for the administration, as it heads out the door, to put some ideological trophies on the wall.”
Mr. Wyden, the chairman of a subcommittee on natural resources, said he was focusing on a
series of recently issued environmental rules. Among them are measures relaxing protections for
endangered species, allowing uranium mining near the Grand Canyon, and making it easier for coal
companies to dump mining debris in nearby streams and valleys.
The enactment of such rules has been the subject of a drumbeat of news reports in recent months.
Though it can take years for a new administration to complete the process necessary to overturn a rule
that has taken effect — allowing a president to tie his successor’s hands — Democrats will have far
greater opportunity to rescind Mr. Bush’s late rules than has typically been the case in a period when the
party in power changes. With Democratic control of both chambers of Congress and the White House, the
political planets are aligned to make much of the Bush administration’s late handiwork unusually
vulnerable.
Spokesmen for the House speaker, Nancy Pelosi, Democrat of California, and the Senate majority
leader, Harry Reid, Democrat of Nevada, said they shared their colleagues’ desire to overturn some of the
regulations but were waiting for guidance from the administration before adopting a specific strategy.
President-elect Barack Obama’s incoming White House counsel, Gregory B. Craig, said in a statement
that their team was in the process of reviewing “these new regulations that are being issued during the
final days” of the Bush administration and “will take appropriate steps to address any concerns in a timely
manner.”
Congress has the authority to rescind an agency’s regulation by passing legislation to trump the
rule. Democrats in both chambers said they were considering attaching amendments rescinding various
Bush-era rules to the coming stimulus package, which is considered “must-pass” legislation.
22
Still, there are drawbacks to such an approach. Mr. Obama has indicated that he wants to keep the
stimulus package streamlined. And Democratic efforts to add amendments to a Senate bill could be
blocked by Republicans with a filibuster.
For that reason, Democrats say that they are also considering using the Congressional Review Act
of 1996, an obscure and rarely used process that sets up fast-track procedures to overturn regulations.
The law allows Congress to rescind a rule by passing a “resolution of disapproval,” which cannot be
filibustered. The resolution also requires presidential approval and can be invoked only for a few months
after a rule is issued.
The only instance in which it has been used successfully was in 2001, shortly after Mr. Bush took
office. Republicans used it to nullify a late Clinton rule setting ergonomic standards for workplaces.
Republicans did not have much need for the law then. The Clinton administration had issued most of its
late regulations in its final weeks, and so most had not yet taken effect when Mr. Bush entered office. As
a result, Mr. Bush was able to freeze most of Mr. Clinton’s rules without Congressional help.
But the Bush administration, seeking to avoid a similar fate for its rules, imposed an early
deadline on agencies to finalize them. Most of its late rules will already have taken effect by the time Mr.
Obama becomes president, meaning he will not able to freeze them. Congressional Democrats, though,
could use the Review Act to take aim at any rule made final dating to mid-2008, potentially trumping Mr.
Bush’s maneuver, said Veronique de Rugy, a senior research fellow at the Mercatus Center at George
Mason University.
Representative Nick J. Rahall II, a West Virginia Democrat who is the chairman of the House
Natural Resources Committee, said he intended to do just that. Mr. Rahall said he wanted to rescind a rule
reducing safeguards that ensured that federal projects did not harm endangered species. “I intend to work
with the House leadership to overturn the harmful regulations governing America’s endangered wildlife
via the Congressional Review Act,” Mr. Rahall said in a statement.
Still, the Review Act has problems that could give lawmakers pause. It requires that a separate
resolution be filed, debated and voted on for each rule, which could consume a great deal of time. In
addition, the act prohibits issuing a new regulation that is “substantially the same” as the nullified one, a
vague ban that could pose a legal problem if Democrats merely want to adjust the regulation, said Peter
Strauss, a law professor at Columbia University.
Robin Bravender, Thursday Is High Noon for Sen. Murkowski's Climate Resolution
N.Y. Times, ClimateWire, June 7, 2010
In a vote that could be a precursor to a summer debate on climate and energy legislation, the
Senate is set to vote Thursday on whether to unravel U.S. EPA's authority to issue climate rules. Sen.
Lisa Murkowski (R-Alaska) is planning to call for a vote on a resolution to upend EPA's "endangerment"
finding for greenhouse gases, a determination that paves the way for agency climate rules. Murkowski
last month reached an agreement with Majority Leader Harry Reid (D-Nev.) to call for the June 10 vote.
The vote comes as EPA prepares to start regulating greenhouse gases from automobiles and
industrial facilities next year. Many lawmakers and industries see Murkowski's resolution as their best
chance of blocking those Clean Air Act rules, which they say will be unwieldy and too expensive.
23
Murkowski is attempting to undo the endangerment finding under the Congressional Review Act,
which would require 51 votes to clear the chamber. Up to seven hours of debate will precede the vote; no
filibusters or amendments would be possible. Even if Murkowski's measure clears the Senate, supporters
concede that it faces an uphill climb in the House and faces a likely veto from President Obama. EPA
Administrator Lisa Jackson opposes the measure.
The only time the Congressional Review Act has been used to successfully upend a federal rule
was in 2001, when both Republican-controlled chambers overturned Clinton administration standards on
workplace ergonomics. President George W. Bush signed the bill. Still, Senate passage of the resolution
would send a powerful political signal as the Obama administration readies climate rules and Senate
Democrats prepare to launch a full-court press on climate and energy legislation.
Murkowski has 41 co-sponsors, including three Democrats: Sens. Mary Landrieu of Louisiana,
Blanche Lincoln of Arkansas and Ben Nelson of Nebraska. But even if she wins the votes of the three
Republicans who are not already co-sponsoring the bill—Maine Sens. Olympia Snowe and Susan Collins
and Sen. Scott Brown of Massachusetts—Murkowski would need the support of at least seven more
Democrats or independents. Murkowski has said she will call for a vote whether or not she has enough
supporters to clear the chamber. She refused to divulge her vote count last month, calling it "top secret."
Sen. Lindsey Graham (R-S.C.), a leading GOP voice on climate issues and a co-sponsor of
Murkowski's resolution, said last month he expects the measure to pass the Senate. "There are a lot of
people who will be in the camp of, 'We should do it, not the EPA,'" Graham said. Graham helped write
energy and climate legislation with Sens. John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) but backed
out as a co-sponsor.
Additional votes for the resolution could come from moderate Democrats who are supporting
separate efforts to limit EPA's regulatory power. Sen. Jay Rockefeller (D-W.Va.) introduced another bill
that would block EPA's power to regulate stationary sources for two years. "I haven't made up my mind
yet," Rockefeller said last month when asked whether he would support Murkowski's bill.
Rockefeller's four Democratic co-sponsors—Sen. Claire McCaskill of Missouri, Byron Dorgan
and Kent Conrad of North Dakota, and Tim Johnson of South Dakota—may also be supportive, although
several of them have said they prefer the two-year timeout to Murkowski's measure.
Jackson and other critics of the Murkowski resolution have warned that nullifying the
endangerment finding would limit the fuel savings and emission reductions anticipated under EPA's new
greenhouse gas standards for tailpipes. Rockefeller says his approach is better than Murkowski's because
it would allow EPA to move forward on auto rules while staving off rules for stationary sources. "I think
mine's a little better crafted," he said last month.
Andrew Wheeler, a former Republican staff director for the Environment and Public Works
Committee who now works for B&D Consulting, said that because "it's looking more and more likely that
this will be the only climate change vote this year," several of the moderates who are wavering on it are
more likely to vote "yes" this week.
But critics are hopeful that the resolution will be handily defeated. "I oppose the Murkowski
resolution because it would gut the Clean Air Act—one of our nation's strongest and most effective pieces
24
of legislation," said Sen. Michael Bennet (D-Colo.), who is running for re-election this fall. "Instead of
debating this misguided resolution, the Senate should move to comprehensive clean energy legislation."
Frank O'Donnell, president of the advocacy group Clean Air Watch, predicted that Murkowski's
measure will fail. "I think if she already had 51 votes, she would have called for the vote," O'Donnell
said. O'Donnell and other environmentalists have blasted Murkowski for attempting to overturn EPA's
scientific determination that greenhouse gases pose a threat to public health and welfare. "It would be
very hard for anyone who believes in 21st century science to vote with her," O'Donnell said.
Emily Figdor, federal global warming program director at Environment America, said she is
optimistic that the Senate will oppose the measure but said, "We're not taking anything for granted." The
resolution is a "huge attack on our ability to move forward to clean energy on Clean Air Act protections
that have worked for 40 years," Figdor said. She also fears that passage of the measure could hinder
efforts at passing a broader climate bill. EPA pre-emption, which is included in the Kerry-Lieberman
climate bill, "is a significant motivator" for some moderate senators, Figdor said.
18.
During the 112th Congress, opponents of the Obama Administration’s regulatory
program proposed to go one step further than the Congressional Review Act. H.R. 10, the
“Regulations From the Executive in Need of Scrutiny Act of 2011,” passed the House of
Representatives on December 7, 2011, by a vote of 241-184. The bill would have prohibited all
“major rules,” as defined in the Congressional Review Act, from going into effect until approved
by a joint resolution passed by a majority of both houses of Congress and signed by the President
(or enacted over his veto). The Senate did not take up the legislation before it adjourned on
January 3, 2013. Writing before the House vote, The New York Times urged Congress not to
change the balance between legislative and executive authority in this way:
Undermining the Executive Branch
N.Y. Times, Dec. 4, 2011
The House will soon consider a bill called the Regulations From the Executive in Need of
Scrutiny Act, REINS for short. Its proponents—more than 200 co-signers, mostly Republicans—may
hope the stupefying title will lull voters into forgetting what the bill would do. That would be a mistake.
REINS is a terrible piece of legislation that would undermine a functioning regulatory system that
protects people from harm. It would also do a great disservice to Congress itself.
In a nutshell, the bill would stop any major regulation issued by a federal agency and costing
more than $100 million from taking effect unless it received approval from both houses of Congress and
the president. Many such rules are issued every year involving everything from food safety to efficiency
standards for cars. Disapproval from one house would be enough to kill a rule and force the agency to
start all over again. A rule would also die if one house failed to act within 70 days.
The bill is the fullest flowering of the Republicans’ antiregulatory philosophy. Beyond that, it
would upend the traditional relationship between the legislative and executive branches. Under longstanding practice, Congress enacts laws—the Clean Air Act, for instance—and then empowers the
executive branch to negotiate with stakeholders and write detailed regulations. Congress delegates this
responsibility because it has neither the time nor the expertise to develop the rules or the machinery and
25
manpower to enforce them. REINS would radically re-position Congress to make final decisions that
involve detailed technical matters.
The bill is also deeply undemocratic. Under our present system of governance, laws require the
approval of both houses of Congress and the president. Under REINS, one house can effectively undo a
law by killing off regulations that carry out the law without the consent of the other parties involved in its
creation.
Congress is hardly powerless to change regulations or prevent them from being carried out—even
now the House calendar is loaded with bills that would undercut the Environmental Protection Agency’s
ability to carry out clean air laws. Congress can also rewrite the underlying statutes. But such changes
require the consent of both houses and the president. The REINS Act would short-circuit all this and
thwart the effective work of government.
In later assignments, we will consider some of the other means by which Congress can
block or alter decisions by federal agencies without actually amending the statute that delegates
regulatory authority to the agencies.
19.
To the surprise of many, the Republican leadership in the 112th Congress also proposed
to grant the President line-item veto authority under terms that they believed would be consistent
with the Supreme Court’s decision in Clinton v. City of New York. The “Expedited Legislative
Line-Item Veto and Rescissions Act of 2012,” H.R. 3521, is described in the following article.
David Lawler, House Votes to Give Obama Limited Line-Item Veto
Reuters, Feb. 8, 2012
The House of Representatives voted to give President Barack Obama a limited line-item veto authority on
Wednesday in a rare display of bipartisanship on bitterly divisive spending and budget issues. The House
voted 254-173, with 57 Democrats joining Republicans in favoring the bill, which allows the president to
propose elimination of individual items in spending legislation and subject them to a separate, second
vote by Congress.
Sponsored by the top Republican and Democrat on the House Budget Committee, the line-item
veto bill had strong support from the White House. Many presidents have sought line-item vetoes over the
years as a tool to chip away at wasteful spending. Currently, the president must sign or veto spending
bills in their entirety.
A Republican-controlled Congress in 1996 gave Democratic President Bill Clinton a full lineitem veto authority that required a two-thirds majority to override and reinsert spending measures. But
the Supreme Court ruled it unconstitutional in 1998, saying it took spending powers away from Congress.
The bill passed on Wednesday tries to get around the constitutional problem by subjecting vetoed items to
a second vote in Congress.
But its fate is unclear in the Democrat-controlled Senate, where a 60-vote majority is often
needed. A Democratic Senate aide said there were currently no plans to advance a companion bill co-
26
sponsored by Republican Senator John McCain and Democratic Senator Tom Carper that has support
from both parties.
Representative Paul Ryan, the Republican chairman of the House Budget Committee said the
veto was a number of steps being taken by the House to "clean up the system on how we spend hardworking taxpayer dollars. "When we pass large spending bills, we vote on things we're not even
necessarily sure we're voting on," Ryan said, adding that it would help discourage frivolous expenditures
offered by individual lawmakers. "If I'm a member of Congress and I want to put something like this in a
spending bill, I ought to think twice about whether or not I'm willing to defend that kind of spending in
the light of day on an individual vote among my peers."
Unlike a slew of other bills aimed at reforming the budget process offered by House Republicans
in recent weeks, the line-item veto measure was co-sponsored by Chris Van Hollen, the ranking Democrat
on the House Budget Committee. "This is a simple bipartisan measure to provide more transparency we
can take when it comes to over $1 trillion in discretionary spending," Van Hollen said. "This is
constitutional. Congress has the final say."
Republicans are pushing more than 10 other budget reform bills this year in an effort to seize the
election-year high ground and portray themselves as the party better equipped to conserve taxpayer
dollars.
The Senate took no action on the legislation before adjourning on January 3, 2013.
20.
Although we have focused in this assignment on the constitutional relationship between
Congress and the Executive, the doctrine of separation of powers also animates many of the
Supreme Court’s decisions reviewing the interpretation, application, and enforcement of statutes.
In these cases, the Court has created a variety of rules that are designed to define the role of the
courts vis-à-vis the other two branches. We will study this law in detail throughout the semester.
21.
Another important constitutional question that arises in the environmental area is the
scope of federal regulatory power vis-à-vis the states. We will turn to that and related topics in
the next assignment.WHITMAN v. AMERICAN TRUCKING ASSOCIATIONS
Supreme Court of the United States
531 U.S. 457 (2001)
JUSTICE SCALIA delivered the opinion of the Court.
These cases present the following questions: (1) Whether § 109(b)(1) of the Clean Air
Act (CAA) delegates legislative power to the Administrator of the Environmental Protection
Agency (EPA). (2) Whether the Administrator may consider the costs of implementation in
setting national ambient air quality standards (NAAQS) under § 109(b)(1). (3) Whether the
Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of Title I of the
CAA, 42 U.S.C. §§ 7501-7515, with respect to implementing the revised ozone NAAQS. (4) If
so, whether the EPA's interpretation of that part was permissible.
27
I
Section 109(a) of the CAA, 42 U.S.C. § 7409(a), requires the Administrator of the EPA
to promulgate NAAQS for each air pollutant for which "air quality criteria" have been issued
under § 108, 42 U.S.C. § 7408. Once a NAAQS has been promulgated, the Administrator must
review the standard (and the criteria on which it is based) "at five-year intervals" and make "such
revisions . . . as may be appropriate." CAA § 109(d)(1), 42 U.S.C. § 7409(d)(1). These cases
arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter (PM)
and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 C.F.R. § 50.7
(1999)); NAAQS for Ozone, id. at 38856 (codified in 40 C.F.R. §§ 50.9, 50.10 (1999)).
American Trucking Associations, Inc., and its co-respondents in No. 99-1257—which include, in
addition to other private companies, the States of Michigan, Ohio, and West Virginia—
challenged the new standards in the Court of Appeals for the District of Columbia Circuit,
pursuant to 42 U.S.C. § 7607(b)(1).
The District of Columbia Circuit accepted some of the challenges and rejected others. It
agreed with the No. 99-1257 respondents (hereinafter respondents) that § 109(b)(1) delegated
legislative power to the Administrator in contravention of the United States Constitution, Art. I,
§ 1, because it found that the EPA had interpreted the statute to provide no "intelligible
principle" to guide the agency's exercise of authority. American Trucking Assns., Inc. v. EPA,
336 U.S. App. D.C. 16, 175 F.3d 1027, 1034 (1999). The court thought, however, that the EPA
could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of §
109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to
the agency. Id. at 1038. (On this delegation point, Judge Tatel dissented, finding the statute
constitutional as written. Id. at 1057.) On the second issue that the Court of Appeals addressed,
it unanimously rejected respondents' argument that the court should depart from the rule of Lead
Industries Assn., Inc. v. EPA, 208 U.S. App. D.C. 1, 647 F.2d 1130, 1148 (CADC 1980), that the
EPA may not consider the cost of implementing a NAAQS in setting the initial standard. It also
rejected respondents' argument that the implementation provisions for ozone found in Part D,
Subpart 2, of Title I of the CAA, 42 U.S.C. §§ 7511-7511f, were so tied to the existing ozone
standard that the EPA lacked the power to revise the standard. The court held that although
Subpart 2 constrained the agency's method of implementing the new standard, 175 F.3d at 1050,
it did not prevent the EPA from revising the standard and designating areas of the country as
"nonattainment areas," see 42 U.S.C. § 7407(d)(1), by reference to it, 175 F.3d at 1047-1048.
On the EPA's petition for rehearing, the panel adhered to its position on these points, and
unanimously rejected the EPA's new argument that the court lacked jurisdiction to reach the
implementation question because there had been no "final" implementation action. American
Trucking Assns., Inc. v. EPA, 195 F.3d 4 (CADC 1999). The Court of Appeals denied the EPA's
suggestion for rehearing en banc, with five judges dissenting. Id. at 13.
The Administrator and the EPA petitioned this Court for review of the first, third, and
fourth questions described in the first paragraph of this opinion. Respondents conditionally
cross-petitioned for review of the second question. We granted certiorari on both petitions. We
have now consolidated the cases for purposes of decision.
28
***
III
Section 109(b)(1) of the CAA instructs the EPA to set "ambient air quality standards the
attainment and maintenance of which in the judgment of the Administrator, based on [the]
criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect
the public health." 42 U.S.C. § 7409(b)(1). The Court of Appeals held that this section as
interpreted by the Administrator did not provide an "intelligible principle" to guide the EPA's
exercise of authority in setting NAAQS. "[The] EPA," it said, "lacked any determinate criteria
for drawing lines. It has failed to state intelligibly how much is too much." 175 F.3d at 1034.
The court hence found that the EPA's interpretation (but not the statute itself) violated the
nondelegation doctrine. Id. at 1038. We disagree.
In a delegation challenge, the constitutional question is whether the statute has delegated
legislative power to the agency. Article I, § 1, of the Constitution vests "all legislative Powers
herein granted . . . in a Congress of the United States." This text permits no delegation of those
powers, Loving v. United States, 517 U.S. 748, 771, 135 L. Ed. 2d 36, 116 S. Ct. 1737 (1996);
see id. at 776-777 (SCALIA, J., concurring in part and concurring in judgment), and so we
repeatedly have said that when Congress confers decisionmaking authority upon agencies
Congress must "lay down by legislative act an intelligible principle to which the person or body
authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States, 276 U.S.
394, 409, 72 L. Ed. 624, 48 S. Ct. 348 (1928). We have never suggested that an agency can cure
an unlawful delegation of legislative power by adopting in its discretion a limiting construction
of the statute. * * * The idea that an agency can cure an unconstitutionally standardless
delegation of power by declining to exercise some of that power seems to us internally
contradictory. The very choice of which portion of the power to exercise—that is to say, the
prescription of the standard that Congress had omitted—would itself be an exercise of the
forbidden legislative authority. Whether the statute delegates legislative power is a question for
the courts, and an agency's voluntary self-denial has no bearing upon the answer.
We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a
minimum requires that "for a discrete set of pollutants and based on published air quality criteria
that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards
at a level that is requisite to protect public health from the adverse effects of the pollutant in the
ambient air." Requisite, in turn, "means sufficient, but not more than necessary." These limits
on the EPA's discretion are strikingly similar to the ones we approved in Touby v. United States,
500 U.S. 160, 114 L. Ed. 2d 219, 111 S. Ct. 1752 (1991), which permitted the Attorney General
to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing
so was "'necessary to avoid an imminent hazard to the public safety.'" Id. at 163. They also
resemble the Occupational Safety and Health Act provision requiring the agency to "'set the
standard which most adequately assures, to the extent feasible, on the basis of the best available
evidence, that no employee will suffer any impairment of health'"—which the Court upheld in
29
Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 646, 65 L. Ed.
2d 1010, 100 S. Ct. 2844 (1980), and which even then-Justice Rehnquist, who alone in that case
thought the statute violated the nondelegation doctrine, see id. at 671 (opinion concurring in
judgment), would have upheld if, like the statute here, it did not permit economic costs to be
considered. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 545, 69 L. Ed.
2d 185, 101 S. Ct. 2478 (1981) (REHNQUIST, J., dissenting).
The scope of discretion § 109(b)(1) allows is in fact well within the outer limits of our
nondelegation precedents. In the history of the Court we have found the requisite "intelligible
principle" lacking in only two statutes, one of which provided literally no guidance for the
exercise of discretion, and the other of which conferred authority to regulate the entire economy
on the basis of no more precise a standard than stimulating the economy by assuring "fair
competition." See Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446, 55 S. Ct. 241
(1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L. Ed. 1570, 55 S.
Ct. 837 (1935). We have, on the other hand, upheld the validity of § 11(b)(2) of the Public
Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange
Commission authority to modify the structure of holding company systems so as to ensure that
they are not "unduly or unnecessarily complicated" and do not "unfairly or inequitably distribute
voting power among security holders." American Power & Light Co. v. SEC, 329 U.S. 90, 104,
91 L. Ed. 103, 67 S. Ct. 133 (1946). We have approved the wartime conferral of agency power
to fix the prices of commodities at a level that "'will be generally fair and equitable and will
effectuate the [in some respects conflicting] purposes of the Act.'" Yakus v. United States, 321
U.S. 414, 420, 423-426, 88 L. Ed. 834, 64 S. Ct. 660 (1944). And we have found an "intelligible
principle" in various statutes authorizing regulation in the "public interest." See, e.g., National
Broadcasting Co. v. United States, 319 U.S. 190, 225-226, 87 L. Ed. 1344, 63 S. Ct. 997 (1943)
(FCC's power to regulate airwaves); New York Central Securities Corp. v. United States, 287
U.S. 12, 24-25, 77 L. Ed. 138, 53 S. Ct. 45 (1932) (ICC's power to approve railroad
consolidations). In short, we have "almost never felt qualified to second-guess Congress
regarding the permissible degree of policy judgment that can be left to those executing or
applying the law." Mistretta v. United States, 488 U.S. 361, 416, 102 L. Ed. 2d 714, 109 S. Ct.
647 (1989) (SCALIA, J., dissenting); see id. at 373 (majority opinion).
It is true enough that the degree of agency discretion that is acceptable varies according
to the scope of the power congressionally conferred. See Loving v. United States, supra, at 77273; United States v. Mazurie, 419 U.S. 544, 556-557, 42 L. Ed. 2d 706, 95 S. Ct. 710 (1975).
While Congress need not provide any direction to the EPA regarding the manner in which it is to
define "country elevators," which are to be exempt from new-stationary-source regulations
governing grain elevators, see § 7411(i), it must provide substantial guidance on setting air
standards that affect the entire national economy. But even in sweeping regulatory schemes we
have never demanded, as the Court of Appeals did here, that statutes provide a "determinate
criterion" for saying "how much [of the regulated harm] is too much." 175 F.3d at 1034. In
Touby, for example, we did not require the statute to decree how "imminent" was too imminent,
or how "necessary" was necessary enough, or even—most relevant here—how "hazardous" was
too hazardous. 500 U.S. at 165-67. Similarly, the statute at issue in Lichter authorized agencies
30
to recoup "excess profits" paid under wartime Government contracts, yet we did not insist that
Congress specify how much profit was too much. 334 U.S. at 783-86. It is therefore not
conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are
"nonthreshold" pollutants that inflict a continuum of adverse health effects at any airborne
concentration greater than zero, and hence require the EPA to make judgments of degree. "[A]
certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action."
Mistretta v. United States, supra, at 417 (SCALIA, J., dissenting) (emphasis deleted); see 488
U.S. at 378-379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret
as requiring the EPA to set air quality standards at the level that is "requisite"—that is, not lower
or higher than is necessary—to protect the public health with an adequate margin of safety, fits
comfortably within the scope of discretion permitted by our precedent.
***
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the
cases are remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring.
The parties to this case who briefed the constitutional issue wrangled over constitutional
doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has
treated the "intelligible principle" requirement as the only constitutional limit on congressional
grants of power to administrative agencies, see J. W. Hampton, Jr., & Co. v. United States, 276
U.S. 394, 409, 72 L. Ed. 624, 48 S. Ct. 348 (1928), the Constitution does not speak of
"intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein
granted shall be vested in a Congress." U.S. Const., Art. 1, § 1 (emphasis added). I am not
convinced that the intelligible principle doctrine serves to prevent all cessions of legislative
power. I believe that there are cases in which the principle is intelligible and yet the significance
of the delegated decision is simply too great for the decision to be called anything other than
"legislative."
As it is, none of the parties to this case has examined the text of the Constitution or asked
us to reconsider our precedents on cessions of legislative power. On a future day, however, I
would be willing to address the question whether our delegation jurisprudence has strayed too far
from our Founders' understanding of separation of powers.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, concurring in part and concurring in
the judgment.
Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency
(EPA) the authority to promulgate national ambient air quality standards (NAAQS). * * * [T]he
Court convincingly explains why the Court of Appeals erred when it concluded that § 109
31
effected "an unconstitutional delegation of legislative power." American Trucking Assns., Inc. v.
EPA, 175 F.3d 1027, 1033 (CADC 1999) (per curiam). I wholeheartedly endorse the Court's
result and endorse its explanation of its reasons, albeit with the following caveat.
The Court has two choices. We could choose to articulate our ultimate disposition of this
issue by frankly acknowledging that the power delegated to the EPA is "legislative" but
nevertheless conclude that the delegation is constitutional because adequately limited by the
terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the
authority delegated to the EPA is somehow not "legislative power." Despite the fact that there is
language in our opinions that supports the Court's articulation of our holding, I am persuaded
that it would be both wiser and more faithful to what we have actually done in delegation cases
to admit that agency rulemaking authority is "legislative power."
The proper characterization of governmental power should generally depend on the
nature of the power, not on the identity of the person exercising it. See Black's Law Dictionary
899 (6th ed. 1990) (defining "legislation" as, inter alia, "formulation of rules for the future"); 1
K. Davis & R. Pierce, Administrative Law Treatise § 2.3, p. 37 (3d ed. 1994) ("If legislative
power means the power to make rules of conduct that bind everyone based on resolution of
major policy issues, scores of agencies exercise legislative power routinely by promulgating
what are candidly called 'legislative rules'"). If the NAAQS that the EPA promulgated had been
prescribed by Congress, everyone would agree that those rules would be the product of an
exercise of "legislative power." The same characterization is appropriate when an agency
exercises rulemaking authority pursuant to a permissible delegation from Congress.
My view is not only more faithful to normal English usage, but is also fully consistent
with the text of the Constitution. In Article I, the Framers vested "All legislative Powers" in the
Congress, Art. I., § 1, just as in Article II they vested the "executive Power" in the President, Art.
II, § 1. Those provisions do not purport to limit the authority of either recipient of power to
delegate authority to others. See Bowsher v. Synar, 478 U.S. 714, 752, 92 L. Ed. 2d 583, 106 S.
Ct. 3181 (1986) (STEVENS, J., concurring in judgment) ("Despite the statement in Article I of
the Constitution that 'All legislative powers herein granted shall be vested in a Congress of the
United States,' it is far from novel to acknowledge that independent agencies do indeed exercise
legislative powers"); INS v. Chadha, 462 U.S. 919, 985-986, 77 L. Ed. 2d 317, 103 S. Ct. 2764
(1983) (White, J., dissenting) ("Legislative power can be exercised by independent agencies and
Executive departments . . . "); 1 Davis § 2.6, p. 66 ("The Court was probably mistaken from the
outset in interpreting Article I's grant of power to Congress as an implicit limit on Congress'
authority to delegate legislative power"). Surely the authority granted to members of the Cabinet
and federal law enforcement agents is properly characterized as "Executive" even though not
exercised by the President. Cf. Morrison v. Olson, 487 U.S. 654, 705-706, 101 L. Ed. 2d 569,
108 S. Ct. 2597 (1988) (SCALIA, J., dissenting) (arguing that the independent counsel exercised
"executive power" unconstrained by the President).
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It seems clear that an executive agency's exercise of rulemaking authority pursuant to a
valid delegation from Congress is "legislative." As long as the delegation provides a sufficiently
intelligible principle, there is nothing inherently unconstitutional about it. * * *
33