Are Non-binding Congressional Resolutions Permissible?

[Sanford Levinson]

Seth Tillman has written well-nigh definitive article on this point, published in the Texas Law Review a couple of years go.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of David M. Wagner
Sent: Mon 2/19/2007 11:43 AM
To: 'Eric Freedman'; rjlipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: RE: Are Non-binding Congressional Resolutions Permissible?



Is the argument here that "Every Order, Resolution, of Vote to which the
Concurrence of the Senate and House of Represenative may be necessary"
implies that there are resolutions (and orders and votes) to which such
concurrence is NOT necessary, and that in such cases, bicameralism not being
necessary, presentment is not necessary either?

More specifically: in Curtiss-Wright, did the Court think its excursus on
sovereignty was necessary because the power at issue had been delegated by a
resolution and not by a statute? If it had been delegated by statute, would
it not have sufficed to cite Brig Aurora, Field, and J.W. Hampton and be
done with it?


David M. Wagner
Regent University School of Law
1000 Regent University Drive
Virgina Beach, VA  23464
757-226-4697


> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Freedman
> Sent: Saturday, February 17, 2007 4:50 PM
> To: rjlipkin at aol.com; CONLAWPROF at lists.ucla.edu
> Subject: Re: Are Non-binding Congressional Resolutions Permissible?
>
> -How about the final para. of Art. 1, Sec. 7, which would
> seem rather clearly to contemplate a continuation of this
> longstanding practice.
> Cf. Resolved: That these United Colonies are, and of right
> ought to be, free and independent states.
> Best. -E.
>
>
>
>                         *************
>                          Eric M. Freedman
>     Maurice A. Deane Distinguished Professor of Constitutional Law
>                      LAWEMF at Hofstra.edu
> Office:                              Home Office:
> Hofstra Law School              250 West 94th Street
> Hempstead, N.Y. 11550       New York, N.Y. 10025
> Tel. 516-463-5167                 Tel. 212-665-2713
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>                         *************
>
>
> >>> <rjlipkin at aol.com> 2/17/2007 4:18 PM >>>
>   I might have asked this or a similar question before, and
> if so, I apologize, but what constitutional authority
> warrants Congress passing non-binding resolutions. Arguably,
> a non-binding vote is not legislation and Congress is
> supposed to legislate. Thus, a non-biding vote has the same
> status, or so it appears to me, as Congress adjourning to a
> local watering hole and voting on an array of issues. (1) Did
> the Colts deserve to win the Super Bowl, (2) Is there really
> a distinction between original intent and original meaning?
> or (3) whether the fact-value distinction has merit? That
> they do so in their chambers doesn't seem to make much of a
> difference. (This also applies to "sense of the Congress"
> resolutions.)
> 
>  My question is this: Where in the constitutional text (or
> reasonable inferences from the text) is Congress warranted in
> simply telling President Bush they oppose his escalation in
> Iraq? It's not an answer, in my view, to reply that
> non-binding resolutions, about matters within congressional
> authority to legislate, are warranted by the same authority
> that warrants the legislation. The textual or inferential
> basis for legislation are designed to enable Congress to
> legislate not to engage in non-legislative pronouncements, or
> so I would argue.
> Members of Congress have the right to free speech. Perhaps
> Congress as an institution has such a right. So if Congress
> wants to take a tally of its members' views on the Iraq war,
> they have constitutional protection to do so. But so does the
> Court, the Actors Guild, and even the Colts.
> What's the difference?
> 
>  Given all the hoopla about the Iraq resolution, I'm fairly
> sure I must be wrong. Hence, I'd appreciate enlightenment.
>     Bobby
> 
>  Robert Justin Lipkin
>  Professor of Law
>  Widener University School of Law
>  Delaware
> 
>  Ratio Juris: Contributor: http://ratiojuris.blogspot.com/ 
> Essentially Contested America: Editor:
> http://www.essentiallycontestedamerica.org/
>  
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