Are Non-binding Congressional Resolutions Permissible?

[Lynne Henderson]

Richard
     With all due respect, shared power is absolutely all over the 
constitutional text as well as in precedent and practice.  Re: "first 
in time  'rules'": Neustadt may have had it "wrong" in technical 
terms--I am deeply sympathetic to Scalia's dissent in *Morrison v. 
Olsen*--but nevertheless, the powers *are* shared textually and 
historically.  Thus, the executive can veto, and Congress can override. 
  The Executive can nominate, and the Senate can decline to affirm.  The 
Pres. proposes, Congress disposes and it is not a successive deal 
necessarily--Congress cna propose and the Prez can veto of course,.  
Nevertheless, all can be on the same page and  "whoever started it" is 
less important than all share in it. OTOH, if we are debating 
"bindingness", then of course one House acting alone cannot "bind", 
authoritatively, anyone, but it sends a legitimate political signal to 
others--they are free to reject or adopt of course.  except, of course, 
finding--only the House can initiate that.
	IOW, an exercise of "Power" is legitimate, but whether it is legally  
binding is another thing altogether.
       Sincerely
           Lynne

  On Feb 19, 2007, at 1:52 PM, Richard Dougherty wrote:

> Just a quick note to respond to the last point: I think Richard 
> Neustadt's account of "shared powers" is highly misleading.  The 
> powers are not shared, but are exercised successively.  But in any 
> case, I think one could argue that the House didn't exercise a "power" 
> in this instance, which is precisely why the resolution has been so 
> sharply criticized by the left and the right..
>  Richard Dougherty
>
> -----Original Message-----
> From: "Gordon Silverstein" <gsilver at berkeley.edu>
> Sent 2/17/2007 3:39:20 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Are Non-binding Congressional Resolutions Permissible?
>
> The difference is that, unlike the Court, the Actors' Guild and the 
> Colts ... the Members of the Congress of the United States are the 
> elected representatives of the people of the United States. And the 
> People of the United States are the sovereign power of the United 
> States. Therefore what their representatives say in their official 
> capacity as the elected representatives of the sovereign people 
> matters -- POLITICALLY if not in a formal legal sense.
>  
> Is it binding? Not in a legal sense. Is it important? Seems like it 
> ought to be -- again, precisely because the democratically-elected 
> representatives of the sovereign of the United States are taking a 
> formal position on a question of great importance to their 
> constitutents and their nation. And even if it has no normative bite, 
> it certainly might matter politically, in the struggle for the 
> hearts-and-minds and political support of the sovereign people.
>  
> Should that legally bind or control the democratically elected 
> President of the United States? No -- but should it significantly 
> influence his judgement? One would certainly think so, particularly 
> since the Congress was elected less than a year ago, and the President 
> was elected almost three years ago.
>  
> Ours is a system of separated institutions sharing power .. and power 
> (to continue to quote from Richard Neustadt) is not the same as formal 
> legal authority. This is ultimately a struggle for power ... will 
> Congress prevail or will the President? And the answer to that has 
> relatively little to do with formal allocations of legal authority and 
> far more to do with the ability to actually persuade others to do what 
> you want them to do. And that's about politics, no? (At least as much 
> as it is about formal constitutional authority).
>  
>  
> - Gordon Silverstein
>  
>  
>
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> rjlipkin at aol.com
> Sent: Saturday, February 17, 2007 1:18 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: Are Non-binding Congressional Resolutions Permissible?
>
>      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/
>
> Check out the new AOL. Most comprehensive set of free safety and 
> security tools, free access to millions of high-quality videos from 
> across the web, free AOL Mail and more.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as 
> private. Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/enriched
Size: 8682 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/conlawprof/attachments/20070219/c1819171/attachment.bin