CONSTITUTIONAL LAW

CLASS 19February 19, 2008

More on Executive Power – Can Congress Increase Executive Power?

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)

Legislative Line-Item Veto Act of 2006

• Did not make it into law although passed by House

• Would this be constitutional?

LIMITS ON EXECUTIVE POWER

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

doctrine

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

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

Current Status of the Non-Delegation Doctrine?

• See, e.g. unanimous decision of the Court in Whitman v. American Trucking Ass’n, Inc. (2001) [C p. 296]

• Scalia wrote the opinion of the Court

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, O’Connor

• Concurrence by Powell• Dissent by White• Dissent by Rehnquist,

joined by White

Clinton v. New York (1998)• Can Congress expand

executive power?• Majority by: Stevens

Joined 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)

George W. Bush’s 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=7079&sequence=0

• Passed the House in 2006, killed in the Senate in January 2007

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.

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

• Per curiam opinion• Can Congress

appoint executive officers (majority of members of FEC)?

Removal Power

• Impeachment ofAndrew Johnson afterhe fired Secretary of

War Edwin Stanton

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

Humphrey’s Executor v. United States (1935)

• Unanimous opinion written by Justice Sutherland

Wiener v. United States (1958)

• Did the Court apply the Humphrey’s or Myers rule?

• Unanimous opinion by Justice Frankfurter

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

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

• Justice Rehnquist delivered the majority opinion

• Justice Kennedy did not participate

• Justice Scalia dissented