Controlling delegations through legislative vetoes – Chadha recap

1. Controlling delegations through legislative vetoes – Chadha recap • Under INA Sec. 244(c)(2), House passed resolution overriding INS suspension of Chadha’s deportation (leg. veto). Chadha challenged legislative veto as unconstitutional. • SCT struck down the veto, reasoning: • Exercise of the legislative veto was “essentially legislative in purpose and effect” because it“had the purpose and effect of altering the rights, duties and relations of persons” who were outside of the legislative branch. • When Congress exercises legislative power it must meet the following requirements (which it didn’t here) • Bicamerality(both houses must pass) • Presentment (to the President for veto/signature) • Article I, Sec. 7, cl. 2 & 3

2. Issues with Justice Burger’s definition of legislative power • What does it mean to “have the purpose and effect of altering the rights, duties and relations of persons”? • Most activity engaged in by government officials could be characterized as exercises of legislative power. Thus, Justice Burger’s definition seems like it could be too broad. • Would it have been better to characterize Congress’s decision to override the suspension of deportation in a different way?

3. Legislative veto as congressional self-delegation • Even if Justice Burger is right and Congress is exercising quintessentially legislative power, why does Congress need to satisfy the bicamerality and presentment requirements in this instance: • If Congress can delegate legislative authority to an agency, why can’t it delegate to a portion of itself the authority to veto agency action – especially if the statute giving it that authority was passed consistent with the bicamerality and presentment requirements of the Constitution? • Is there a difference between Congress and agencies in this regard?

4. Ways other than the legislative veto that Congress can control delegations: • Contract with America Advancement Act (pp. 49 & 997) • Agencies must submit all rules to Congress. Rules except “major” rules go into effect. Latter are under 60-day stay pending resolutions discussed below. • Major rules are subject to disapproval by a joint resolution filed w/in 60 days that satisfies bicamerality & presentment req’mts. Resolutions are retroactive. If no disapproval by Congress w/in 60 days the rules go into effect. • If disapproved, agency cannot submit new rule in same form unless a new law authorizes it. • Joint Select Comm. on Deficit Reduction (aka the Super Committee) • Budget Control Act of 2011 created a 12-member committee and gave it power to enter into proposals re budget cuts. • Comm. proposal went to House/Senate for a vote (bicamerality) but only limited debate/no amendments allowed (Art. I, §5, cl.2 allows these restrictions). Then proposal went to President if approved (presentment). • If Comm. couldn’t agree on proposed budget cuts, automatic cuts that were in the original legislation were to occur on 1/1/13.

5. Controlling agencies through the appropriations process • How can Congress use its budgetary authority to influence agency action? • Consider the OSHA ergonomics regulation issue at p. 52. • Whywould Congress want to constrain OSHA’s ability to enact ergonomics regulations through a budgetary rider rather than through a regular law? • What are the disadvantages of using a budget rider?

6. Line item veto – controlling the appropriations process • Line Item Veto Defined: Power of the executive to nullify specific provisions of a bill (usually budgetary appropriations) without nullifying the entire legislative package. • What are the purposes of giving the president a line item veto as opposed to having him use the presidential veto contained in Art. I, Sec. 7, cl. 2?

7. Clinton v. New York • LIVA, 2 USC § 691: • Gave President ability to cancel specific appropriations & tax benefits provisions w/in 5 days of law’s enactment. Conditions included: • Must identify items for cancellation after considering legislative history, the purposes of the items to be cancelled and other relevant information, • Must determine that cancellation will reduce federal budget, not impair essential gov’t functions, and not harm the national interest • In message accompanying veto sent to Congress, President must identify reasons for cancellation • Congress could enact a “disapproval bill” reversing cancellation (pursuant to Art. I, Sec. 7, cl. 2 although on an expedited basis) • SCT struck down LIVA’s line-item veto as violating Art I, Sec. 7 “presentment” requirements • Constitutional silence on “line-item veto” should be taken as prohibition given the specific and detailed architecture in Constitution as to how laws are passed – delicate balance of powers between branches

8. Why isn’t this just a delegation issue as the dissent claims? • Faced with two potential precedents, Clinton majority chose the Chadha formalistic route – Constitution has clear requirements regarding passing/repealing legislation and the President didn’t follow them. • Why didn’t SCT just use it’s delegation precedents to decide the issue? • Why not treat this as a delegation to President of power to cancel appropriations/tax benefits rather than a violation of Art. I, Sec. 7? • Is this a delegation of power by Congress to Congress as in Chadha? • Does the text of the Constitution clearly prohibit line-item vetoes? • Is the power to cancel the effect of a law under LIVA different from the power given to the President in Field v. Clark? • What, then, IS the big concern about this delegation of authority?

9. Legislative vetoes and the like at the state level: • Legislative veto: Courts usually require a state constitutional provision allowing such a veto; if no provision, they strike it down using the reasoning in Chadha. • “Mandatory approval” legislative rules review process: Special legislative comm. reviews all agency rules w/ power to veto, suspend or delay rules. Most courts strike down provisions as unconstitutional absent a specific constitutional provision allowing them.See Missouri example.

10. Missouri and mandatory rules approval • Missouri statute created Joint Committee on Administrative Rules (JCAR) – consisted of five senators/five representatives. Under the statute: • Agencies submitted rules to JCAR for approval/disapproval before publication. • If JCAR didn’t disapprove the rule w/in 20 days, it could be published as final. • If JCAR disapproved a rule, it reported its finding to the full Gen’l Assembly, which could ratify a disapproval by a separate resolution. G.A. could also revoke current rules by joint resolution. • Mo. Coalition for the Envio v. JCAR, 948 S.W.2d 125 (1997): Mo’s mandatory rules approach violates state constitution’s bicamerality and presentment requirements

11. Line-item vetoes in the states: • Most governors have the line item veto • Only seven states don’t give governor some kind of line item veto. • Missouri governor has line-item veto - Mo Const. Art. IV. § 26: Governor may object to one or more items or portions of items of appropriation of money in a bill, while approving other portions of the bill except governor may not reduce appropriations for public schools or payment of principal and interest on public debt. • Generally interpreted as meaning that governor can strike: • Funding for particular item, funding for entire program or agency, &/or language accompanying an appropriation (if appropriation is stricken), • Governor can suggest reduced appropriations amounts for legislature to consider • Governor must send statement of objectionable items back to G.A. which considers each objection separately. • G.A. can override line-item veto – Most think that 2/3 majority is required but it is not clear from text of Mo. Constitution.