Fwd: Re: So Much for the President's Assent to the McCain Amendment

Howard Schweber schweber at polisci.wisc.edu
Tue Jan 3 10:05:32 PST 2006

>At 10:36 PM 1/2/2006 -0800, Bob Sheridan wrote:
>>A change in system that forced constitutional issues to the front burner 
>>prematurely may not do more than to make it more difficult for government 
>>to function.
>This is a classic concern, of course, and it is one that was been directly 
>addressed by the Rehnquist Court  in the context of its nondelegation 
>rulings.  A little while ago Bobby Lipkin suggested that Bush's signing 
>statement is a "back door line item veto."  In response, Marty Ledermar 
>proposed that the distinction between this signing statement and a line 
>item veto is that the law remains on the books and can be enforced by a 
>future executive, and appeals to the discretion of the executive to choose 
>when to enforce the law.  Most of the discussion since then has been on 
>the second point, and I think the conclusion is that the issue turns on 
>whether the McCain Amendment constitutes a St. Cyr/Castle Rock "clear 
>statement" that in *this* case Congress really did intend that the 
>President would enforce the law.  Even without that clear statement, of 
>course, executive discretion has its limits as in the impoundment cases.

But I want to return to the former question. I have raised this issue 
before, and at the risk of appearing foolish (but in the hope of becoming 
educated!) I will raise it again:  from a purely legal, doctrinal, 
how-the-Roberts-Court-might-rule perspective, why aren't nondelegation and 
the separation of powers principles that were developed in the 
nondelegation cases -- Morrison and Clinton -- central to the analysis of 
the issues under discussion just as much as the question of the limits on 
the Executive's authority to decline to enforce a law?
>         Let me try to suggest the argument.  Morrison and Clinton said 
> two things.  First, where Congress delegates power, that delegation may 
> be unconstitutional if the result is that the agency or actor receiving 
> authority is given "incongruous" power, if the delegation "encroaches" on 
> the authority of one of the branches, or if the delegation "undermines" 
> the authority of one of the branches.
>         Second, those cases also contain separate discussions of 
> separation of powers doctrine, in which the encroachment and usurpation 
> tests reappear in a different form.  In Morrison, for example, Rehnquist 
> wrote (for a 7-1 majority) that the proper test was not whether an action 
> was purely executive or quasi-legislative, but rather whether the action 
> in question impaired the President's constitutional functions or 
> constituted an attempt by one branch to usurp the authority of 
> another.  In Clinton v. New York, Stevens' opinion points up the question 
> of "incongruity" when he argues (6-3) that the Line Item Veto results in 
> granting the President the legislative authority to write bills rather 
> than sign or return them.  (From a behavioralist perspective, 
> incidentally, I love the fact that in Morrison the debate was between 
> Rehnquist and Scalia, and in Clinton the debate was between Stevens and 
> Breyer.)
>         Now, how do those principles apply here?  The President seems to 
> be trying to leave open the possibility of appealing to the AUMF -- note 
> the reference in the signing statement to the "shared objective of 
> Congress and the President" -- in which case the argument would 
> presumably be that the signing statement is a Chevron-style permissible 
> construction of the statute in light of earlier congressional enactments. 
> That, I take it, will be the administration's first line of 
> response.  This would also, of course, would fit with the appeal to the 
> AUMF on which the administration has relied all along, and it is probably 
> the best way to support a claim that the President's actions should not 
> be subject to judicial review, since he would not be directly challenging 
> the idea of judicial supremacy by asserting an independent and 
> unreviewable authority to interpret his constitutional powers.
>         But!  Why is this not a nondelegation problem?  More generally, 
> why isn't Alito's take on the use of signing statements generally a 
> violation of nondelegation principles, and why wouldn't any reliance on 
> the AUMF be highly problematic on these grounds?  True, Marty is correct 
> that this signing statement is not literally a line item veto, but that 
> does not seem to adequately address the question.  How is it that the 
> President not encroaching on legislative functions and undermining 
> Congress' authority (Morrison) by effectively rewriting a bill passed by 
> Congress (Clinton)?

>Howard Schweber
>Dept. of Political Science
>Affiliate Faculty, Law School
>University of Wisconsin-Madison
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