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The line-item veto – Clinton v. New York

The line-item veto – Clinton v. New York. SCT majority struck down grant of line item veto as violating Art. I, Sec. 7, cl. 2

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The line-item veto – Clinton v. New York

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  1. The line-item veto – Clinton v. New York • SCT majority struck down grant of line item veto as violating Art. I, Sec. 7, cl. 2 • Silence on “line-item veto” should be taken as prohibition given the specific and detailed architecture in Constitution as to how laws are to be passed – delicate balance of powers between branches • Dissenting justices argued LIVA involved a delegation issue and the delegation isn’t problematic • This ISN’T a delegation of power by Congress to Congress • So no problem of CONGRESSIONAL aggrandizement of power as in Chadha • But this isn’t really a delegation as in Field v. Clark: • Field involved executive implementation of congressional policy under one statute. LIVA allows executive to NULLIFY congressional policy in many statutes. • Such authority gives the President the power to REWRITE laws (i.e., legislate) rather than execute them. • Problem of aggrandizement of power in the EXECUTIVE.

  2. Controlling delegations at the state level: • Stronger state anti-delegation principles result in less need for direct legislative control over agencies. Attempts to control delegations usually look like: • Legislative veto: one/both houses of legislature can nullify agency action by resolution • Courts usually require a specific provision in the State constitution allowing legislature to exercise veto. Otherwise follow Chadha and strike them down. • “Mandatory approval” legislative rules review process: Special Leg. Comm. reviews all agency rules w/power to veto, suspend or delay rules. If the comm. doesn’t act w/in period of time, rules take effect. • Most state courts strike down provisions as unconstitutional absent a specific constitutional provision allowing them. • Missouri Coalition for the Envio. v. Joint Comm. on Admin Rules, 948 S.W.2d 125 (1997) – ruled MO’s mandatory rules approach violated state Constitution

  3. Line-item vetoes in the states • Most Governors have the line item veto • Only seven states do not give their governor some kind of line item veto. • Ind., Md., Nv., N.H., N.C., R.I., and Vt. • Missouri governor has line-item veto. Governor can strike: • Funding for particular item • Funding for entire program or agency • Language accompanying appropriation (if appropriation is stricken) • Suggest reduced amounts for legislature to consider

  4. The relationship between the President and agencies • To what extent does the President control the actions of agencies? • Does/should President control the appointment/removal of agency officials? • Does/should President control the day-to-day operations of agencies (i.e., can he direct what agencies actually do even to the extent of overruling an agency head’s directives)? • Does the kind of agency matter? • Department • Single-person Head; Policy-Making role; Rulemaking, enforcement or adjudicatory functions (but often not all of them) • Examples – Dept’s of Defense, State, Justice • Independent agency • Multi-member commissions (usually); Involve regulation of the economy (transportation, commerce, labor, trade, investments . . . ); Usually have all rulemaking, enforcement & adjudicatory functions • Examples – SEC, FTC, CPSC,FDIC, FCC

  5. The President and Appointments – Art. II, Sec. II, cl. 2 [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. How can “Officers of the U.S” be appointed?

  6. Buckley v. Valeo – the statutory scheme • FECA of 1971 created the Federal Election Commission w/ purpose of regulating campaign finances and political activities of candidates for federal political office • The Commission had 8 members: • 2 ex officio (non-voting) • 2 appointed by President • 2 appointed by President pro tem of Senate • 2 appointed by Speaker of the House • All appointees were subject to confirmation by a majority of both houses. • Various candidates for political office sued claiming that FECA violated the Constitution.

  7. Buckley – the Supreme Court holding: • Why does SCT find that FECA violates the appointments clause? • Why are FEC commissioners “Officers of the US”? Are all employees of the federal government officers? How can you tell the difference? • Why do their powers suggest that they are “Officers of the US” rather than employees? • So, if the FEC commissioners are Officers, why does their appointment violate the Constitution? • But don’t some of those powers look legislative in nature – why are the commissioners acting as Officers of the US rather than adjuncts to the legislature when they exercise those powers?

  8. What about the necessary & proper clause? • Why can’t Congress argue that Art. I, Sec. 8, cl. 18 allows it to enact laws necessary and proper to carry into being its powers? • Why might Congress have wanted to create a commission with such membership? • What problems does the appointments scenario raise though?

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