Bicameralism and Presentment Flashcards
Why does Constitution make lawmaking difficult by design? (4)
To prevent laws threatening liberty, to promote deliberation, to ensure law has broad popular support, to assure fair notice of the law (Gundy, Gorsuch dissenting)
Cases like Chadha and Clinton come up because they are attempting to create ___
new pathways for existing, Constutionally authorized organizations
The admin state is not like Chadha/Clinton because it creates new ____ for ___
pathways, new institutions
Chadha facts
Provision of Act allowed either House of Congress to veto. Chadha overstayed his visa. AG elected for him to stay, but House passed resolution to the contrary.
What is the Bicameralism clause?
A bill must pass w/ majorities of both houses Article 1, 1
Chadha holding
The legislative veto is unconstitutional because it is congressional lawmaking that does not comply w/ bicameralism and presentment.
What is veto/presentment clause?
& president must have chance to veto Article 1, 7
Chadha White dissent
cites Jackson concurrence, Given the extent of delegation & the modern administrative state, The Congressional veto “is a necessary check on the unavoidably expanding power of the agencies,
Arugment that legislative would decrease gridlock
easier to make law
Arugment that legislative would increase gridlock
one chamber could theoretically override or repeal the other
What if legislative veto were okay?
Congress could theoretically slice and dice powers where fit, avoiding bicameralism and presentment
Clinton facts
Allow president to selectively veto parts of a bill, Clinton uses this to cancel two provisions after signing bill into law
Clinton holding
“The cancellation procedures set forth in the Act violate the Presentment Clause
Clinton reasoning 1
In practical effect, President amended and repealed two acts of Congress, statutory appeals authorized in Article 1, no authorization for the President
Clinton reasoning 2
The Constitution “is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes” and this should be construed as equivalent to an express prohibition
Clinton reasoning 3
“Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution.”
Clinton Reasoning 4
Not persuaded by Government’s that the President’s authority to cancel new direct spending and tax benefit items is no greater than his traditional authority [discretion] to decline to spend appropriated funds.”
How is Clinton similar to Chadha?
governmental actors attempting to alter the Constitution’s channels of power to make things less onerous (generally not accepted by the Court)
What issue in Clinton did the Government miss as a defense?
suspension of laws defense
How is Clinton different from grant of discretion to POTUS?
Line item veto ends a provision permanently whereas discretionary enforcement can always change
Can Congress sue to enforce the power of the purse?
Open question, raised in Burwell but not decided
The power of the purse is how the executive is __
accountable to Congress
The power of the purse is rarely used ___ and there are no __
with an edge (cut off funding for programs to coerce exec), good cases on this
Congress’ decision to ____ ultimately led to military withdrawal from Vietnam
withhold funds for military in SE
Burwell is an attempt by the executive to ____
cut congressional purse strings
What is the standing issue in Burwell?
Once spent a large amount without authorization, nothing to stop you from spending more. Only DOJ or maybe Congress have standing
Lovett is not really about the power of the purse because __
it has nothing to do with the main role of Congress (control Pres with power of the purse)
Lovett is really about __
government actor seeking alternative channels of power, metaphorical bill of attainder
Burwell facts
Obama Treasury accused of spending billions of unappropriated funds to run ACA
Burwell holding
House has standing to assert claims for constitutional grievances—but not statutory ones.
What is the non-appropriation theory from Burwell?
House standing to pursue constitutional claims, to preserve its power of the purse if non-appropriation claims have merit, House has been injured
What is the employer mandate theory in Burwell?
House claims that Lew improperly amended ACA concern only the implementation of a statute, not adherence to any specific constitutional requirement. The House does not have standing
Burwell is a ___ because it was ___
District court case (no precedent), settled
Burwell main takeaway
raises a question, but doesn’t really resolve it: Whether the House has standing to sue over an executive officer spending money that was not allocated
One problem with allowing Congressional suit in Burwell
House didn’t pursue its own remedy by really using power of purse w/ edge.
Counterargument to Congress should have standing in Burwell
they have political tools to fight back (refuse to pass laws until X, passed law President didn’t like and the override veto)
Lovett holding
Section 304 more than appropriation measure, it was bill of attainder and thus unconstitutional
Burwell suggests that if the ultimate power of Congress is to defund and exec ignores __
then maybe necessary for courts to step in
US v Lovett question
Can Congress prohibit the payment of certain individuals?
Power of the Purse Clause
Art. I § 9: “No Money shall be drawn from the Treasury, but in consequence of
Appropriations made by law.”
Lovett holding
Holding (Black): No. That is a bill of attainder because they are criminalizing someone without
any trial, which is prohibited by Art. I § 9.
Burwell holding
Congress’ concerns are whether a statute was executed correctly, not whether the
Constitution was executed correctly, therefore they have no standing.
Breyer Dissent Clinton
Bills are so large that it is inefficient for the President to have to veto and entire
Bill if they only disagree with one provision.
Dissent (Scalia) on Clinton
Dissent (Scalia): Read textually, the act has already met all Constitutional requirements. The power to veto after-the-fact is no different than the Executive ability to use discretion when
implementing.
Clinton Kennedy concurrence
No, re-allocation of powers given by Constitution (also Hamburger opinion)
