1. Constitutional Law I Spring 2004Con Law I SoP II Mar. 25, 2004

2. 2 SoP Matrix CongressPresidentFederal Court Legislative Strict Formalism Flexible & Functional Strict in theory; loose in practice Executive ForbiddenAnything goes Rare Judicial ForbiddenGenerousPer Art. III

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

4. 4 Exercise of Legislative Power Chadha v. INS (1983) What function was INS performing? What function is Congress performing?  judicial review?  executive function?  legislative function? Can never do this Can only do this But only if it satisfies Bicameralism & Presentment

5. 5 Structural Limits on Legis. 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

6. 6 Structural Limits on Congress (cont.) Presentment Text  Art. I, § 7, ¶ 2: “Every Bill... shall, before it becomes a Law, be presented to the President. If he approve he shall sign it, but if not he shall return it, with his Objections...”  Art. I, § 7, ¶ 3: “Every Order... shall be presented to the President, and before the Same shall take Effect, shall be approved by him...” Theory  Fear of legislative authority => executive as check

7. 7 Applying Youngstown to Congress? Black ? strict SoP  B&P must be satisfied in every case where Congress legislates; i.e., where it alters rights/responsibilities Jackson ? structural SoP (Zone 1)  B&P satisfied in initial bill (creating legislative veto); exec. & leg. branches are cooperating Frankfurter ? flexible SoP (gloss of life)  admin agencies are indispensible to governing. Con- gress should be able to check its delegated power

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

9. 9 Results no legislative veto joint resolution ok (because of presentment)  Joint resolutions are functionally equivalent to bills  Except joint resolution proposing const’l amendment concurrent resolution only for  actions not having force of law (e.g., expressing sentiment or will of congress) where presentment not required in first place

10. 10 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