Bicameralism and Presentment

Question 1

Why does Constitution make lawmaking difficult by design? (4)

Answer 1

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)

Question 2

Cases like Chadha and Clinton come up because they are attempting to create ___

Answer 2

new pathways for existing, Constutionally authorized organizations

Question 3

The admin state is not like Chadha/Clinton because it creates new ____ for ___

Answer 3

pathways, new institutions

Question 4

Chadha facts

Answer 4

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.

Question 5

What is the Bicameralism clause?

Answer 5

A bill must pass w/ majorities of both houses Article 1, 1

Question 6

Chadha holding

Answer 6

The legislative veto is unconstitutional because it is congressional lawmaking that does not comply w/ bicameralism and presentment.

Question 7

What is veto/presentment clause?

Answer 7

& president must have chance to veto Article 1, 7

Question 8

Chadha White dissent

Answer 8

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,

Question 9

Arugment that legislative would decrease gridlock

Answer 9

easier to make law

Question 10

Arugment that legislative would increase gridlock

Answer 10

one chamber could theoretically override or repeal the other

Question 11

What if legislative veto were okay?

Answer 11

Congress could theoretically slice and dice powers where fit, avoiding bicameralism and presentment

Question 12

Clinton facts

Answer 12

Allow president to selectively veto parts of a bill, Clinton uses this to cancel two provisions after signing bill into law

Question 13

Clinton holding

Answer 13

“The cancellation procedures set forth in the Act violate the Presentment Clause

Question 14

Clinton reasoning 1

Answer 14

In practical effect, President amended and repealed two acts of Congress, statutory appeals authorized in Article 1, no authorization for the President

Question 15

Clinton reasoning 2

Answer 15

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

Question 16

Clinton reasoning 3

Answer 16

“Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution.”

Question 17

Clinton Reasoning 4

Answer 17

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.”

Question 18

How is Clinton similar to Chadha?

Answer 18

governmental actors attempting to alter the Constitution’s channels of power to make things less onerous (generally not accepted by the Court)

Question 19

What issue in Clinton did the Government miss as a defense?

Answer 19

suspension of laws defense

Question 20

How is Clinton different from grant of discretion to POTUS?

Answer 20

Line item veto ends a provision permanently whereas discretionary enforcement can always change

Question 21

Can Congress sue to enforce the power of the purse?

Answer 21

Open question, raised in Burwell but not decided

Question 22

The power of the purse is how the executive is __

Answer 22

accountable to Congress

Question 23

The power of the purse is rarely used ___ and there are no __

Answer 23

with an edge (cut off funding for programs to coerce exec), good cases on this

Question 24

Congress’ decision to ____ ultimately led to military withdrawal from Vietnam

Answer 24

withhold funds for military in SE

Question 25

Burwell is an attempt by the executive to ____

Answer 25

cut congressional purse strings

Question 26

What is the standing issue in Burwell?

Answer 26

Once spent a large amount without authorization, nothing to stop you from spending more. Only DOJ or maybe Congress have standing

Question 27

Lovett is not really about the power of the purse because __

Answer 27

it has nothing to do with the main role of Congress (control Pres with power of the purse)

Question 28

Lovett is really about __

Answer 28

government actor seeking alternative channels of power, metaphorical bill of attainder

Question 29

Burwell facts

Answer 29

Obama Treasury accused of spending billions of unappropriated funds to run ACA

Question 30

Burwell holding

Answer 30

House has standing to assert claims for constitutional grievances—but not statutory ones.

Question 31

What is the non-appropriation theory from Burwell?

Answer 31

House standing to pursue constitutional claims, to preserve its power of the purse if non-appropriation claims have merit, House has been injured

Question 32

What is the employer mandate theory in Burwell?

Answer 32

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

Question 33

Burwell is a ___ because it was ___

Answer 33

District court case (no precedent), settled

Question 34

Burwell main takeaway

Answer 34

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

Question 35

One problem with allowing Congressional suit in Burwell

Answer 35

House didn’t pursue its own remedy by really using power of purse w/ edge.

Question 36

Counterargument to Congress should have standing in Burwell

Answer 36

they have political tools to fight back (refuse to pass laws until X, passed law President didn’t like and the override veto)

Question 37

Lovett holding

Answer 37

Section 304 more than appropriation measure, it was bill of attainder and thus unconstitutional

Question 38

Burwell suggests that if the ultimate power of Congress is to defund and exec ignores __

Answer 38

then maybe necessary for courts to step in

Question 39

US v Lovett question

Answer 39

Can Congress prohibit the payment of certain individuals?

Question 40

Power of the Purse Clause

Answer 40

Art. I § 9: “No Money shall be drawn from the Treasury, but in consequence of
Appropriations made by law.”

Question 41

Lovett holding

Answer 41

Holding (Black): No. That is a bill of attainder because they are criminalizing someone without
any trial, which is prohibited by Art. I § 9.

Question 42

Burwell holding

Answer 42

Congress’ concerns are whether a statute was executed correctly, not whether the
Constitution was executed correctly, therefore they have no standing.

Question 43

Breyer Dissent Clinton

Answer 43

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.

Question 44

Dissent (Scalia) on Clinton

Answer 44

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.

Question 45

Clinton Kennedy concurrence

Answer 45

No, re-allocation of powers given by Constitution (also Hamburger opinion)