Spring 2004 Con Law I

Constitutional Law ISoP II

Mar. 25, 2004

2

SoP Matrix

Congress

President

Federal Court

Legislative

Strict Formalism

Flexible & Functional

Strict in theory; loose in practice

Executive Forbidden Anything goes

Rare

Judicial Forbidden Generous Per Art. III

3

Exercise of Legislative PowerAll 3 branches exercise some legis. PowerWhen 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

Exercise of Legislative PowerChadha v. INS (1983) What function was INS performing?What function is Congress performing?

judicial review?executive function?legislative function?

Can never do this

Can never do this

Can only do thisBut only if it satisfies Bicameralism & Presentment

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 ...”

TheoryFramers feared legislative branch the mostDivision within branch helps avoid majority tyranny

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 ...”

TheoryFear of legislative authority => executive as check

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

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

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

Oversight w/o Legis VetoOversight Hearings into agency operationsNew legislation reduce agency discretionBudgetary constraints limit agency funds / threaten shut downCreate private rights of action authorize individuals to seek judicial

review impeded by S.Ct. decision in Lujan v. Defenders