INS v. Chadha (p. 380)

  From Oyez:

Facts of the case

In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General. Chadha had stayed in the U.S. past his visa deadline. Though Chadha conceded that he was deportable, an immigration judge suspended his deportation. The House of Representatives voted without debate or recorded vote to deport Chadha.

Question

Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?

Conclusion

The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the "explicit constitutional standards" regarding lawmaking and congressional authority.

 

P. 382: “Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. . . .

. . . [T]he purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1 and § 7, cl. 2, guide our resolution of the important question presented in this case. . . .”

 

Also p. 382: 

The Presentment Clauses

"The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. . . .

The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. [Duncan Sidebar: Where was this idea of carefully circumscribing the powers of Congress when the Court is apply "as you wish" deference to Congress under the Commerce Clause and the Necessary and Proper Clause?] It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. . . ."p. 

 

 

Bicameralism (p. 383)

 

"The bicameral requirement of Art. I, §§ 1, 7 was of scarcely less concern to the Framers than was the Presidential veto and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already remarked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation’s elected officials. . . ."

 

Those veto points are there for a reason, and the Court holds that the legislative veto provision is unconstitutional. The legislative veto may serve a wonderful purpose, but it is inconsistent with the original meaning of Article I and the Framer’s purpose concerning veto points and separation of powers. Text trumps Congress’s judgment that the legislative veto serves a very useful function in contemporary America.

 

Justice White’s dissent stresses functionality over original meaning:

 

“The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the executive branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes. The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment and the economy.”

 

Here is a thought: One thing Congress might do to rein in administrative lawmaking is to add language to laws enacted by Congress providing that the Executive Branch is not authorized to adopt binding rules or policies under the law, but rather only to recommend rules to Congress for its consideration. Congress still gets the benefit of agency "expertise," but still has the final say about whether to enact an agency recommendation as law. In other words, Congress could explicitly forbid delegation of lawmaking power and instead provide that executive agencies could recommend to Congress rules to be enacted through the normal legislative process.

This is similar to the power of the President to recommend to Congress--but not to make--laws. What are your thoughts?