Structural statutes

t If non-delegation doctrineis 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?

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

t 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.

n The legislative vetoenabled Congress to retain some control over the authority which it broadly delegated to president.

n The demise of the legislative veto by Chadhahas not prevented Congress from granting broad authority to executive.

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

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

t Attempted to control future spending decisions by

n enacting balanced-budget provisions,

n structuring executive decisions regarding spending of appropriated funds,

n granting president line-item veto,

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

t Attempted to control president’s use of armed forces by enacting War PowersResolution.

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

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

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

Date: 2015-01-02; view: 715