1. Constitutional Law I Separation of Powers III Legislative Functions April 19, 2006

2. Spring, 2006Con Law I - Manheim2 SoP Matrix CongressPresidentFederal Court Legislative Strict Formalism Flexible & Functional Strict in theory; loose in practice Executive ForbiddenAnything goes Rare Judicial ForbiddenGenerousPer Art. III

3. Spring, 2006Con Law I - Manheim3 Exercise of Legislative Power All 3 branches exercise legislative power When done by Art. I & III branches, must be incidental to primary functions  Executive: Administrative agencies engage in “quasi- legislating” (promulgating regulations)  Judicial: Federal courts create procedural rules (e.g., FRCP) and substantive law (common law) When done by congress, must be according to form prescribed in constitution  Complex composition of fed gov’t is liberty enhancing

4. Spring, 2006Con Law I - Manheim4 INS v. Chadha (1983) Who is acting? single house of congress What function is it performing judicial function?  Review of agency action (suspension of deportation) Powell: clearly adjudicatory executive function?  Administrative action re. immigration legislative function?  Amending existing law? “Altering legal rights, duties and relations of persons”

5. Spring, 2006Con Law I - Manheim5 SoP Matrix CongressPresidentFederal Court Legislative Strict Formalism Flexible & Functional Strict in theory; loose in practice Executive ForbiddenAnything goes Rare Judicial ForbiddenGenerousPer Art. III

6. Spring, 2006Con Law I - Manheim6 Structural Limits on Legislative Power Bicameralism Text  Art. I, § 7, ¶ 2: “Every Bill which shall have passed the House of Representatives and the Senate...”  Art. I, § 7, ¶ 3: “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary...” Theory  Framers feared legislative branch the most  Division within branch helps avoid majority tyranny

7. Spring, 2006Con Law I - Manheim7 Structural Limits on Legislative Power Presentment Text  Art. I, § 7, ¶ 2: “Every Bill... shall, before it becomes a Law, be presented to the President. If he approve he shall sign it, but if not he shall return it, with his Objections...”  Art. I, § 7, ¶ 3: “Every Order... shall be presented to the President, and before the Same shall take Effect, shall be approved by him...” Theory  Fear of legislative authority => executive as check

8. Spring, 2006Con Law I - Manheim8 Applying Youngstown to Congress ? Jackson ? structural SoP (Zone 1)  B&P satisfied in initial bill (creating legislative veto); exec. & leg. branches are cooperating Frankfurter ? flexible SoP (gloss of life)  admin agencies are indispensable to governing; con- gress should be able to check its delegated power Black ? strict SoP  B&P must be satisfied in every case where Congress legislates; i.e., where it alters rights/responsibilities

9. Spring, 2006Con Law I - Manheim9 Standard of Review for Congress Black’s Strict Structural Limits B&P required for all cong’l actions of legislative character Excluding (specified const’l procedures):  Impeachment  Advise & consent on appointments & treaties Why is it ok for executive branch to perform quasi-legislative functions (w/o procedural safeguards), but not ok for Congress to review?  White: Leg. Veto is indispensable to modern gov’t It is a means of defense, not a sword to aggrandize Cong.

10. Spring, 2006Con Law I - Manheim10 Results no legislative veto joint resolution ok (because of presentment) concurrent resolution only for  actions not having force of law (e.g., expressing sentiment or will of congress) where presentment not required in first place Example: Concurrent resolution under WPR, requiring termination of hostilities  Is presentment required in this situation?

11. Spring, 2006Con Law I - Manheim11 Oversight w/o Legis Veto Oversight Hearings into agency operations New legislation reduce agency discretion Budgetary constraints limit agency funds / threaten shut down Create private rights of action authorize individuals to seek judicial review  impeded by S.Ct. decision in Lujan v. Defenders

12. Spring, 2006Con Law I - Manheim12 Excessive Complicity Can congress give too much power to Pres? Per Jackson, Congress enlarges executive power by delegating authority (Zone 1) Per Frankfurter "gloss," power accretes to Pres through congressional inaction and acquiesence Any limits on the power that congress can delegate?

13. Spring, 2006Con Law I - Manheim13 Clinton v. New York (1998) Line Item Veto Act 2 U.S.C. § 691: the President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, cancel in whole-- § 691(b): Cancellation becomes “null & void” if overridden by Disapproval Bill  (1) any dollar amount of discretionary budget authority;  (2) any item of new direct spending; or  (3) any limited tax benefit;

14. Spring, 2006Con Law I - Manheim14 Clinton v. New York (1998) Relevant Constitutional Provisions Art. I, § 8, ¶ 1: "The Congress shall have Power to … pay the Debts and provide for the common Defence and general Welfare" Art. I, § 9, ¶ 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…“ Art. I, § 7, ¶ 2: “Every Bill which shall have passed the House … and the Senate, shall, before it becomes a Law, be presented to the President …”

15. Spring, 2006Con Law I - Manheim15 Clinton v. New York (1998) Cancelled appropriations Bal. Budget Act of 1997: $2.6B medicare funds to NY Taxpayer Relief Act of 1997: corporate tax benefit Justifications for Line Item Veto LIV is merely a delegation of power to Executive  to decline to spend (as President sees fit) Does Pres. execute the law by refusing to implement it? But President may have impoundment power (Train v. NYC) LIV is simply package of separate spending bills  each of which President could have vetoed reality of budget process is mutuality / reciprocity  practicality not a concern - Court employs formalism

16. Spring, 2006Con Law I - Manheim16 Clinton v. New York (1998) LIV violates Presentment Clause President has amended two Acts of Congress  by repealing portion of each. Cancellation not the same as "return" of a bill  Return (regular veto) prevents a bill from becoming law  Here, cancellation effective only after bill becomes law

17. Spring, 2006Con Law I - Manheim17 SoP Principles in LIV Strict Formalism idealized vision of political process (Kennedy) resurrects non-delegation doctrine SoP not violated in traditional manner LIV is practical mechanism for complex spending Jackson in Youngstown:  Doesn’t usurp or aggrandize any branch’s powers

18. Spring, 2006Con Law I - Manheim18 Mistretta v. United States (1989) US Sentencing Commission Comprised in part of Art. III judges Prescribes binding sentencing standards Which branch is acting? Judiciary (Comm’n located in judicial branch) Executive (President removes commissioners) What function is it performing? Legislative (specifying remedies) Judicial (judges have traditionally had sentencing discretion)

19. Spring, 2006Con Law I - Manheim19 Congress ExecutiveJudiciary Legislative Strict Formalis m Flexible & Functional Not core legislat’v power; ancillary to judicial funct’n Executive Forbidde n Anything goes Rare Judicial Forbidde n GenerousNot judicial power per se, but close SoP Matrix Why allow commingling (flexible SoP) here? Little risk of usurpation or interference