Separation of Powers - Legislative Flashcards
The Steel Seizure Case (1952)
Seminal to American Constitutional law because it emphasizes America’s unique separation of powers using each of the modalities of Constitutional interpretation.
BACKGROUND
*This case is framed against the backdrop of national disgust at the recent, unrestrained dictatorships of Hitler, Stalin, and Mao and SCOTUS’s deep shame over upholding internment camps in Korematsu–SCOTUS wanted to be really principled in future analysis of cases that attempted to expand executive power.
FACTS
*Steel workers went on strike during the Korean War, when their services were in high demand. A “do-nothing” Congress refused to act, so Truman used executive order to seize the steel plants and pay employees more to end the strike. Truman claimed he had the power to do so in Vesting, Commander-in-Chief, and Take Care Clauses.
HOLDING
*SCOTUS, 6-3, found that such a taking was unconstitutional.
BLACK’S MAJORITY
*Textualist/Structuralist - there are three “boxes” of governmental power, one for each branch, and takings are squarely legislative. Without Congress granting him room to act, the President cannot seize the steel mills. BUT presidents rightly have done extraordinary things in states of emergency; Black assumes rigidity of boxes without thorough examination; this opinion is overly simplistic (solves the issue at hand, but not more complicated ones).
JACKSON’S CONCURRENCE - A BIG DEAL
Purposivist/Functionalist - Three zones of authority: (1) broad, where president is acting pursuant to express/implied congressional authorization; (2) twilight zone, where president acts and Congress is silent–President can usually only rely on his own powers and be mindful of Congress, but sometimes, Congressional inertia may invite the President to lawfully push boundaries into shared authority space; (3) minimal authority, where President acts adversely to Congress–can only exercise powers explicitly within his realm. Jackson says that Truman falls into (3), given Congress’s past statutes that run opposite to his actions, BUT he could be (2) - Congress never actively disapproved.
FRANKFURTER’S CONCURRENCE
Past practice - This goes beyond any past-sanctioned taking, especially given the relatively mild context (no Civil War).
DOUGLAS’S CONCURRENCE
Structuralist - Takings require compensation; Congress has power of the purse; President can’t do a taking. SGC likes this one!
VINSON’S DISSENT
Past practice - Lincoln did takings during Civil War, so past precedent supports presidential wartime takings.
NATIONAL EMERGENCIES
- This brings up important questions about President’s de facto power to declare national emergencies. No actual clause, but it’s well-established in practice.
- Unilateral declaration of emergencies can be very dangerous–that’s why we can impeach/vote out of office.
Non-Delegation Doctrine
A principle that, in theory, sets limitations on what Congress delegates to other branches.
POST ROAD DEBATES
The first major delegation question that arose–Congress debated whether it should delegate the postal power to the Executive.
ONE GOOD YEAR
- SCOTUS has only ever upheld the non-delegation doctrine twice, both in the same year (1935).
- However, another “good year” could be on the horizon–current SCOTUS has expressed interest in reviving it, to some extent.
INTELLIGIBLE PRINCIPLE
- Taft-Hartley first established the intelligible principle doctrine.
- In Mistretta, SCOTUS supported the idea that Congressional delegations are legitimate when an intelligible principle is involved.
SGC NOTES:
- Reichstag is a cautionary tale of delegation gone too far–had it been more principled about its delegations, Hitler may never have had access to so much unbridled power.
- SCOTUS should step in every once in a while to remind Congress that it can’t hand out its powers all over the place.
Mistretta v. United States (1989)
Congressional delegations of power are only legitimate if they include some intelligible principle that informs the Executive of the delegation’s meaning and bounds.
FACTS
Congress delegated to a sentencing commission the power to adopt sentencing guidelines and gave it multiple goals and factors to consider in determining said guidelines.
BLACKMUN’S MAJORITY
*Policy - Delegation was constitutional because there was an intelligible principle upon which to base the sentencing guidelines, which allows Congress to share burden of legislating without handing over too much unchecked power.
SCALIA’S DISSENT
*Structuralist - Sentencing guidelines have the force of law. Laws drafted outside of Congress are unconstitutional, since law-making is strictly within legislative, not executive, power. This effectively creates a JV congress that hasn’t been selected by the people.
Powell v. McCormack (1969)
Though Congress is granted the power of self-regulation in Article I, sct. 5, it cannot refuse to seat members for any reason outside of the Qualifications Clauses.
FACTS
*Powell was re-elected to Congress, but Congress refused to let him take his seat, since an investigation had found him guilty of corruption.
WARREN’S MAJORITY
*Textualist (with a dash of history and purpose) - expressio unius indicates that the list of qualifications is exhaustive–Congress cannot add others or exclude for reason outside of the list.
SGC NOTES
- Article I, sct. 5 means only that Congress has power to enforce existing standards, not create new ones. The more appropriate option would have either been to impeach and expel or urge the people to amend the Constitution.
- While southerners weren’t seated for reasons beyond qualifications during the Reconstruction, that’s different–they had literally just tried to secede from the Union.
U.S. Term Limits v. Thornton (1995)
Applied the principles of Powell to the states’ (in)ability to add qualifications for federal offices.
BACKGROUND
*In the 1990s, there was a nationwide trend to impose term limits on congressmen. About 1/2 of the states passed amendments to their constitutions creating term limits, arguing that the 10th Amendment granted this ability.
FACTS
*Specifically, this case involved Arkansas’s efforts.
STEVENS’S MAJORITY
- Textualism/Structuralism - Constitution enumerates three qualifications for Congressmen; expressio unius implies that the list is exhaustive. The 10th Amendment only restores state powers that existed before the Constitution went into effect, rather than creating new ones. Since Congress didn’t exist in the Articles, no reserved power.
- Purposivism - Framers were familiar with term limits from the Articles and intentionally left them out from the Qualifications Clauses.
- Past Practice - We went through the trouble of passing an amendment to impose term limits on the President; we’ve considered the same for Congress but haven’t done it in over 200 years.
- Policy - If states could impose term limits, there would be disunity and imbalance of power, since the seniority system would be upended.
Committee on the Judiciary, U.S. House of Representatives v. Miers (D.C. Circuit 2008)
Executive can’t dictate its own immunity, especially given that executive privilege only applies narrowly.
FACTS
The Bush White House fired seven U.S. attorneys, and Congress investigated/issued a subpoena. Miers refused, so Congress sued.
MAJORITY
- Textualist - The powers to investigate and compel testimony are “necessary and proper” to effective legislating, so Congress has the constitutional ability to do so.
- Past Precedent/Practice - McGrain showed that Congress has the core power to investigate and compel; Harlow shoed that senior aides aren’t entitled to absolute immunity from civil liability, even if the president is. Further, there’s a long history of presidential advisors testifying pursuant to Congressional subpoenas.
- Policy - We don’t want senior advisors to have absolute immunity, since that could unnecessarily deprive Congress of non-privileged information that would help in legislative functions.
McGrain v. Dougherty (1927)
Congress can investigate, compel testimony, and arrest people in order to aid its legislative function.
FACTS
*A Senate Committee investigated the Attorney General to see whether he was doing his job properly and subpoenaed his brother for testimony. The brother failed to comply, so Congress arrested him.
VAN DEVANTER’S MAJORITY
- Textualist - Article I, scts. 1 and 8 grant Congress all legislative powers, along with the ability to make all laws necessary and proper for carrying out those powers. While Congress generally can’t inquire into private affairs, their implied auxiliary powers allow them to investigate, etc., in order to pursue legislative goals.
- Past Practice - These powers have a long tradition of use, dating back to British Parliament and colonial legislatures. (BUT this is an imprecise comparison, given how all-powerful England’s legislative branch is).
- Policy - Congress could not legislative effectively if it couldn’t gather information relevant to its goals.
AFTER THE FACT…
SCOTUS ultimately used this precedent to validate HUAC and the Red Scare. BUT it’s unclear whether the vague threat of communism was dangerous enough to Congress to permit their investigations–pretty tenuous.
The Filibuster
Framers were wary of the difficulties of supermajorities (throwback to Articles) and intended Congress to make most decisions by simple majority, with a handful of enumerated exceptions where 2/3 vote is required (overriding presidential vetoes, impeachments, ratifying treaties, etc.). No real evidence that Article I, sct. 5 was meant to authorize filibusters.
RULE 22
- Requirement for cloture to stop filibuster was lowered from 2/3 to 3/5 after Civil Rights filibustering.
- Senate allowed threat of filibuster, rather than filibuster itself, to halt bills, which led to an increase of filibusters, including for judicial nominees to lower courts and the executive branch.
2013 - Senate abolished filibuster of executive branch nominees and lower court judgeships.
2017 - Senate abolished filibuster of SCOTUS judgeships.
FILIBUSTER = BAD
- Weakens presidential power
- Undermines judicial independence from political influence
FILIBUSTER = GOOD
*Senate turns over more slowly, so they’re more likely to vote radically; the population of the Senate is more moderate, so they won’t be super crazy with filibusters.
INS v. Chadha (1983)
Legislative vetoes are unconstitutional under Article I, sct. 7, since they create law without bicameralism or presentment.
BACKGROUND
- Since the 1920s, Congress had been delegating powers but retaining the option for single-house vetoes of agency actions.
- Executive branch had decried this as unconstitutional from the beginning.
FACTS
- Congress delegated the power of deportation to INS, retaining a single-house veto.
- House struck down a resolution that allowed Chadha, an Indian man whose student visa had expired, to stay in the US.
BURGER’S MAJORITY
- Past Practice - Traditionally, striking down an executive determination had to be done through a legislative act presented to both houses (i.e. veto of presidential veto-style).
- Textualist - Allowing one house to make law completely bypasses the bicameralism and presentment requirements. There are specific instances in which one house has the unilateral power to act (think of impeachment proceedings); expressio unius implies that otherwise, everything has to happen by the book.
POWELL’S CONCURRENCE
*Textualist/Purposivist - This is a Bill of Attainder, for all intents and purposes. Congress is restricted from granting bills of attainder, so we should strike down on this narrower question, rather than dealing with the whole “single-house veto” issue.
WHITE’S DISSENT
*Policy - Legislative vetoes make it possible for Congress to delegate its powers without losing total control. We take something really important away by declaring one-house vetoes unconstitutional; plus, we effectively undo over 200 statutes–what a mess!
SGC NOTE
There’s maybe a standing issue here, since technically, both sides wanted Chadha to stay in the US. The House would have been a more appropriate party than the INS.
Clinton v. City of New York (1998)
Presidential line-item vetoes are unconstitutional.
FACTS
- Congress passed the Line Item Veto Act in 1997, granting the President the power to veto specific types of budgetary items without vetoing entire bills.
- President Clinton used this authority to cancel a line in the Balanced Budget Act of 1997.
STEVENS’S MAJORITY
*Textualism - The Constitution does not give the President the ability to repeal law without approval from Congress, so this must be unconstitutional. SGC AGREES.
KENNEDY’S CONCURRENCE
*Policy/Consequentialism - Separation of powers is essential to safeguarding liberties. The president may gain undue influence over Congress with this power, since he could use it to threaten their districts/states.
SCALIA’S DISSENT
*Past Practice - Presidents from Washington onward have been granted huge discretion on spending/impounding appropriated sums–how is a line item veto any different?
BREYER’S DISSENT
*Policy/Purposivism - Bills these days are behemoths, not at all in line with what Framers imagined when they separated the powers. The president should have a more nuanced ability to approve/deny.
SGC NOTE: Line-item vetoes would be a great way to reduce logrolling, but we’d need an amendment to make it constitutional.
United States v. Lovett (1946)
A Congressional prohibition of paying particular government employees’ salaries is an unconstitutional bill of attainder under Article I, sct. 9, rather than an appropriate use of the power of the purse, under Article I, sct. 8.
FACTS
*During the Red Scare, Congress approved an appropriations bill that cut off the salaries of a number of federal employees deemed “communists.”
BLACK’S MAJORITY
- Textualist - Bills of Attainder are specifically prohibited in the Constitution.
- Purposive - Bills of Attainder were prohibited because the Framers didn’t want the legislature targeting and punishing specific people. Since this bill was directed at specific people with the goal of driving them out of their jobs, it was punitive and against the spirit of Article I, sct. 9. SGC AGREES.
FRANKFURTER’S CONCURRENCE
*Originalist - Bills of attainder originally stated guilt and punishment, which this bill doesn’t do. Harm inflicted by government doesn’t equal a bill of attainder.
SGC NOTES
- Sometimes, Bills of Attainder are okay for true classes of one–think Nixon’s tapes. While Congress’s actions specifically targeted Nixon, it’s okay, given the unusual situation and strong public interest. Plus, it wasn’t actually punishment, but rather ruling to protect citizens.
- The same could hypothetically apply to Congress, say, banning Al Qaeda members from serving as airline employees–public interest outweighs punishment aspect (but how do you define “member”?).
U.S. House of Representatives v. Burwell (D.C. Circuit 2014)
How do you deal with two branches of government suing each other?
FACTS: House challenged Obama Administration’s practice of spending discretionary money on Obamacare, despite the fact that no money was specifically appropriated for it.
SGC NOTES:
9 enumerated cases and controversies listed in Article III, sct. 2, but none involve controversies between two branches of government–does federal court have jurisdiction? Probably yes, given that there are constitutional questions involved. Plus, the alternative would be impeachment, which is pretty limited/blunt.
