CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #19

2. Congressional Interference with Presidential Prerogatives

A.  The Legislative Veto

INS V. CHADHA, p. 433 (1983)

• what act of Congress is being challenged, and what was its purpose?
• was the act as such within the substantive powers of Congress?
• if not within the substantive powers of Congress, why not? (Powell)
• assuming it was within Congress's powers, did they follow proper procedures in undertaking the action? (Burger)
• does Art. I s. 7 clearly say what Burger says it says?
• does his analysis apply to the following:
• "two-house veto", requiring majority vote of both houses to override the executive action?
• "two-house approval", requiring a majority vote of both houses to allow the executive action to take effect?
• if the delegation to the Attorney General of power to suspend deportation is valid, why is the delegation to the House of power to override that decision invalid? (White)
• are there any exceptions to its procedural requirements?
• assuming the act to be invalid for substantive or procedural reasons, is the entire statute authorizing the act invalid, or only the specific authorizing provision? (compare Burger with Rehnquist)

Mistretta v. U.S., p. 441 (1989): Federal Sentencing Commission

• May Congress provide for the appointment of judges to the Commission?
• what function will the Commission perform? Is it a legislative or executive function? A judicial function?
• if not a judicial function, why is it not impermissible "non-judicial business" for the courts?

B. Appointment, Discharge, and Supervision of "Officers of the United States"

MORRISON V. OLSON, p. 442 (1988).

• what congressional action is being challenged and what was its purpose?
• is the Independent Counsel an "Officer of the United States" (Art. II s. 2)?
• if so, is she an "inferior officer" whose appointment can be vested by Congress in, for example, the courts?
• how is "inferiority" defined? To whom is the independent counsel "inferior"?
• must such appointments always be made by superior officers responsible for functions to which the "inferior" officer's duties relate?
• is the appointment of a prosecutor a "nonjudicial function" which cannot be imposed on the courts (Art. III)?
• is the prosecutorial function so quintessentially "executive" that it cannot be controlled by a non-executive (e.g., judicial?) officer? (Scalia)

Prior cases discussed in the Morrison opinions:

• U.S. v. Myers (1926). May Congress require Senate approval of presidential dismissal of postmasters, whose appointments required Senate confirmation?
• Humphrey's Executor v. United States (1935). May Congress impose for-cause requirements on dismissing members of the Federal Trade Commission?
• Wiener v. U.S. (1958). May the President dismiss a member of the War Claims Commission, which adjudicates claims against former enemy countries arising out of World War II, absent congressional provision for such dismissal?
• Buckley v. Valeo (1976). May Congress provide that members of the Federal Election Commission be appointed by the House and Senate respectively?
• Bowsher v. Synar (1986). May Congress assign to an officer, whose removal requires a joint resolution of Congress, a crucial role in administering the deficit control process prescribed by the Gramm-Rudman Act?

Subsequent case applying these principles:

Metropolitan Washington Airports Authority (1991): may Congress require, as a condition of transferring control of 2 federally-owned airports to a bi-state authority established by Maryland and Virginia, that the bi-state agreement create a "Review Board" composed of Members of Congress "in their individual capacities", with veto power over certain fundamental decisions of the authority?