CONSTITUTIONAL LAW

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CONSTITUTIONAL LAW

• CLASS 19
• February 19, 2008
• More on Executive Power Can Congress Increase
  Executive Power?

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Clinton v. New York (1998) Can Congress expand
executive power by authorizing the line-item veto
?

• Majority by StevensJoined by Rehnquist,
  Kennedy, Souter, Thomas, GinsburgConcurrence by
  KennedyConcurrence/dissent by ScaliaJoined by
  O'Connor Breyer (in part)Dissent by
  BreyerJoined by O'Connor, Scalia (in part)

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Legislative Line-Item Veto Act of 2006

• Did not make it into law although passed by House
• Would this be constitutional?

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LIMITS ON EXECUTIVE POWER

• Non-delegation doctrine
• 2 New Deal era cases enforced this doctrine

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Panama Refining Co. v. Ryan (1935) C p. 294

• Chief Justice Hughes wrote the majority opinion,
  joined by Sutherland, Butler, Van Devanter,
  Stone, Roberts, McReynolds, Brandeis
• Cardozo was the only dissenter

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Schechter Poultry Corp. v. United States, 295
U.S. 495 (1935) C p. 293

• Chief Justice Charles Evans Hughes wrote the
  majority opinion, joined by 6 other justices
  (Four Horsemen, Roberts, and Brandeis)
• Justice Cardozo wrote a concurring opinion,
  joined by Stone

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Current Status of the Non-Delegation Doctrine?

• See, e.g. unanimous decision of the Court in
  Whitman v. American Trucking Assn, Inc. (2001)
  C p. 296
• Scalia wrote the opinion of the Court

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INS v. Chadha (1983) C p. 299

• Can Congress keep control of executive actions by
  the use of the legislative veto?
• Majority opinion by CJ Burger, joined by Brennan,
  Marshall, Blackmun, Stevens, OConnor
• Concurrence by Powell
• Dissent by White
• Dissent by Rehnquist, joined by White

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Clinton v. New York (1998)

• Can Congress expand executive power?
• Majority by StevensJoined by Rehnquist,
  Kennedy, Souter, Thomas, GinsburgConcurrence by
  KennedyConcurrence/dissent by ScaliaJoined by
  O'Connor Breyer (in part)Dissent by
  BreyerJoined by O'Connor, Scalia (in part)

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George W. Bushs efforts to revive the line-item
veto

• Legislative Line-Item Veto Act of 2006 (HR 4890)
• Testimony at http//www.cbo.gov/showdoc.cfm?index
  7079sequence0
• Passed the House in 2006, killed in the Senate in
  January 2007

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SLICE Act of 2007 (HR 595)

• Introduced January 2007 by Mark Udall (D-Colo)
• Authorizes president to identify specific
  provisions he thinks should be cut and then
  requires Congress to vote on those.

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Buckley v. Valeo (1976) (CB p. 403)

• Per curiam opinion
• Can Congress appoint executive officers (majority
  of members of FEC)?

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Removal Power

• Impeachment of
• Andrew Johnson after
• he fired Secretary of War Edwin Stanton

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Myers v. United States (1926)

• Chief Justice William Howard Taft (a former
  president from 1909-1913) wrote the majority
  opinion joined by Van Devanter, Sutherland,
  Butler, Sanford, StoneDissent by HolmesDissent
  by McReynoldsDissent by Brandeis

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Humphreys Executor v. United States (1935)

• Unanimous opinion written by Justice Sutherland

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Wiener v. United States (1958)

• Did the Court apply the Humphreys or Myers rule?
• Unanimous opinion by Justice Frankfurter

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Bowsher v. Synar (1986) (CB p. 404)

• BURGER delivered the opinion of the Court, in
  which BRENNAN, POWELL, REHNQUIST, and O'CONNOR
  joined. STEVENS filed an opinion concurring in
  the judgment in which MARSHALL joined. WHITE and
  BLACKMUN, filed dissenting opinions

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Morrison v. Olson (1988) (CB p. 410)

• Justice Rehnquist delivered the majority opinion
• Justice Kennedy did not participate
• Justice Scalia dissented