1. 1 Congressional Encroachments and Relinquishments SoP analysis of legislative acts

2. 2 Types of SoP Analyses Traditional themes –usurpation congress performs executive or judicial function Ex: US v. Klein –interference congress obstructs executive or judicial function Ex: Plaut v. Spendthrift Additional Themes –exercise of legislative power –delegation of legislative power

3. 3 Exercise of Legislative Power Chadha v. INS (legislative veto) Who is acting –single house of congress What function is it performing –judicial review? –executive function? –legislative function?

4. 4 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

5. 5 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

6. 6 Which Youngstown Standard Should be Applied 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

7. 7 Standard of Review for Congress Black’s Strict Structural Limits –B&P required for all cong’l actions of legislative character Result –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 –War Powers Resolution?

8. 8 Cong’l Options w/o Bicam/Present. Oversight –Hearings / inquiry into agency operations New legislation –tighten up the reigns on 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

9. 9 Delegation of Legislative Power Clinton v. NY (Line Item Veto) Operation –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-- –(1) any dollar amount of discretionary budget authority; –(2) any item of new direct spending; or –(3) any limited tax benefit; § 691(b): Cancellation becomes “null & void” if overriden by Disapproval Bill Reverse SoP Problem –excessive cooperation, not encroachment

10. 10 Justifications for Line Item Veto LIV is merely a delegation of power to Executive –to decline to spend (as President sees fit) valid only pursuant to “prescribed standard” (cong. policy) 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 strict formalist test

11. 11 Clinton v. NY Cancelled appropriations –Bal. Budget Act of 1997: $2.6B medicare funds to New York –Taxpayer Relief Act of 1997: corporate tax benefit LIV violates Presentment Clause –President has amended two Acts of Congress by repealing a portion of each. –Cancellation not the same as "return" of a bill Return (regular veto) prevents a bill from becoming law Cancellation effective only after the bill becomes law

12. 12 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

13. 13 Delegation of Leg Power to Judiciary Mistretta v. US (Sentencing Comm’n) Unlike Clinton where core legislative function was delegated. –sentencing is traditionally a mixture of legislative policy and judicial discretion –this delegation accompanied by specific guidelines Undermine judicial integrity or independence? –non-judicial administrative or legislative duties may not be imposed See Scalia dissent: this is pure lawmaking –Majority: judges engage in rule-making all the time promulgating rules of procedure making common law