Structural statutes

• If non-delegation doctrine is not revived, and if it is impossible for Congress to set forth clear standards to govern decisions by administrative agencies, are there alternative means by which Congress might establish original position as lawmaker?

• Congress has sporadically attempted to reassert its authority by enacting structural or “quasi-constitutional” statutes.

• Legislative Veto – A legislative veto provision is typically included as part of a congressional statute delegating certain powers to federal agencies. The legislative veto allows one or both houses of Congress to pass a resolution invalidating decisions made by administrative agencies. The resolution is not presented to the President (as a statute must be), and President does not receive an opportunity to veto the resolution.

• The legislative veto enabled Congress to retain some control over the authority which it broadly delegated to president.

• The demise of the legislative veto by Chadha has not prevented Congress from granting broad authority to executive.

• Moreover, it is arguable that Chadha has not seriously limited Congress’ power to control the exercise of the authority which it grants to executive branch.

• Structured prosecutorial decisions when wrongdoing is alleged against high executive officials by mandating appointment of independent counsel.

• Attempted to control future spending decisions by

• enacting balanced-budget provisions,

• structuring executive decisions regarding spending of appropriated funds,

• granting president line-item veto,

• limiting its own ability to foist unfunded mandates on states.

• Attempted to control president’s use of armed forces by enacting War Powers Resolution.

• How should SC respond to these experiments in governance? Two views:

• Structural statutes unconstitutionally expand Congress’s powers. Congress cannot bind us to new structure of governance w/o amending USC.

• Structural statutes merely preserve original balance between Congress and president in regulatory context where broad delegations to executive are fact of life.

Executive authority – foreign Control of foreign affairs

• Comparison with domestic affairs.

• In domestic sphere, SCt has at least sporadically asserted that separation of powers questions can be guided by the textual division of authority among the executive, legislative, and judicial branches.

• In foreign sphere, allocation of authority is not determined by any “natural” division. Much of the “law” in this area is the product of historical practice and practical accommodations, formal and informal, between executive and legislative branches.

United States V. Curtiss-Wright Corp. – Foreign arms sales embargo

• Sutherland 1936. Facts. A joint resolution of Congress authorized the President to ban the sale of arms to countries engaged in a particular conflict. FDR proclaimed such an embargo, and Curtiss-Wright was charged with conspiring to sell arms to Bolivia, one of the countries to which the embargo extended. Curtiss-Wright challenged the joint resolution as being an unconstitutionally broad delegation of legislative power to President.

• Upheld by SCt. SCt upheld the resolution, and the resulting presidential embargo. SCt stressed the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” The need for negotiation, plus the President’s special access to sources of information, required a “degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Here, for instance, President would be better able than Congress to determine whether Bolivia was in fact engaged in the conflict. Thus the delegation to the President was not overly broad, regardless of whether such delegation would be permissible with respect to a domestic issue (a question which SCt did not decide).

• SCt here claimed that “a political society cannot endure without a supreme will somewhere.” Is this true? Is it truer of foreign rather than of domestic affairs? If it is true, then why does Congress have all the foreign affairs powers enumerated in USC. [see below]

• Why does SCt here believe that the President is “the sole organ of the federal government in the field of international relations”?