____________________________________________
In the Supreme Court of Texas
Spring Term, 1999
________________________________________________
Carol Arce, et al
Plaintiff-Appellant
v.
David Burrow, et al
Defendants-Appellees
________________________________________________
On Appeal from the Court of Appeals of Texas,
14th District
________________________________________________
Brief for the Defendants-Appellees
________________________________________________
______________________________________________________
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- sunil khemaney
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Analysis of I.N.S. v. Chadha -
Analysis of I.N.S. v. Chadha
This case concerns whether, and how, Congress may check the authority it has delegated to the executive branch. This might be a political question that the Court should not decide, because it involves a duly enacted law specifying how two branches of government will interact with each other on a certain issue, and both branches seem content with the law. But it also might not be merely a political question. There are some laws that would be unconstitutional even though the legislature and executive agree on them. For example, if the legislature and executive agree on a law abridging freedom of speech, or establishing a national religion, or perhaps even allowing one house of Congress to veto activities of an executive agency, the Court would hold the law unconstitutional, no matter that the other two branches agree on the law. It would be a justiciable, rather than a purely political, question because the constitution directly or indirectly considers the question. The Court declares this case to be justiciable, presumably because it concerns separation of powers, and how Congress shall pass laws, both of which the constitution addresses.
Burger bases his arguments on a consideration of what the Framers intended, as determined from records of the Constitutional Convention, but it is hard to know for sure what they really intended. For that matter, it may not even be relevant. As the dissent points out, the federal government and the nation are profoundly different from when the Framers wrote the constitution. One could argue that their intent no longer matters, because they wrote the constitution so that it would be flexible enough to accommodate unforeseen developments and circumstances. The exponential growth of the federal government is a good example of such recent developments. In addition, since the Framers could not have known the government would grow as it has, how could their intentions apply in any absolute way? But looking at the Framers’ intentions is one way of addressing the underlying values of the constitution, and that seems to be what Burger is concerned with.
Burger has two discussions going on at the same time in this opinion. He mixes the separation of powers issue with the issue of how Congress is supposed to pass laws. The case could not have been decided solely on the separation of powers issue, as the dissent would have it, because the two issues are intimately connected in this case. It is nearly impossible to separate the two issues, and doing so would not do the case justice.
Before condemning the one-house veto as unconstitutional, Burger must define it as an exercise of legislative power. He says that a legislative act is determined not by its form, but rather by whether it is regarded as legislative in character and effect. This seems like a circular argument: that a legislative act is legislative, and he knows it when he sees it. But he might be trying to express the idea that legislative acts are not limited only to bills, but also may include resolutions, orders, or anything else Congress does that requires a vote. The language of Art. I, § 7, cl. 3 supports this. Burger defines the “legislative character” of the one-house veto in three ways, and one of the ways is problematic. He says the veto is by nature legislative because it supplants previous congressional legislation, but this is not exactly true. The veto checks one use of a delegated power, but it does not take away the entire delegated authority, so it cannot be seen as supplanting the previous congressional delegation. It is interesting that Burger thinks he must support his contention with three reasons highlighting the nature and effect of the veto. I think it is pretty clear that anything the legislature does is legislative in character.
Once Burger decides the veto is a legislative act, he discusses the constitutional requirements for legislative acts: presentment and bicameralism. Burger says that presentment and bicameralism place checks on congressional power, protecting the president from Congress, and the nation from improvident laws, and that one reason the one-house veto is a bad idea is because the veto power is not checked by anything. This is true; the House could veto activities that the Senate wants to permit. As far as presentment is concerned, however, the executive does not need protection from the legislature in this case. Congress is the one who delegated this legislative power to the executive in the first place, and the power ultimately resides in Congress. The legislative veto is then more a way of protecting Congress and the nation from the executive’s use of legislative authority. At the same time, though, Congress could effect a check on the delegated power in the usual bicameral-presentment way without resorting to a one-house veto.
One problem with Burger’s presentment-bicameralism argument is that he ignores the very difficult fact that the law delegating authority to the executive and providing for a one-house veto was itself passed by both houses and approved by the president. This takes us back to determining whether this is a political question. Burger does not explicitly address this issue, but he effectively implies that the reason the law is unconstitutional is because it creates something unconstitutional. For Congress to pass a law requiring it to do something amounts to Congress executing its own law. This leads us into the separation of powers issue.
Burger’s approach to separation of powers is not such a formalistic, narrow approach as the Court had in Youngstown. In this case, he says the powers of the three branches are not sealed from one another, but they are functionally identifiable. The discussion is complicated because there are two separation of powers considerations at work at the same time, although Burger does not want to address the first one, the issue of Congress delegating its legislative authority to the executive branch. The executive has this power only because Congress gave it the power, not because the constitution gives it the power. In this way, it seems absurd for the Court to talk about Congress infringing on another branch’s powers. One perspective on this case is that Congress is not interfering with the executive’s executing laws, but rather with the executive’s making laws, although the Court refuses to see the executive as making laws.
The central question is how, or if, Congress may check the authority it has granted to the executive. The authority was Congress’ to begin with, but the Court does not want to allow a check, unicamerally or bicamerally either one, on the power. The implication of Burger’s position is that Congress would have to pass a law and have it approved by the president before it could place a check on power it has delegated to the executive. It seems odd that Congress would have to get the president’s approval (or override his disapproval) in order to check a power granted and reserved to it by the constitution. Perhaps Congress should not delegate away its authority at all if it is not able to oversee how the authority is used.
Delegating legislative authority to the executive might violate the separation of powers principle, but later cases seem to permit some degree of commingling between branches, and the Court has permitted Congress to establish and delegate power to agencies. Burger, however, refuses to see the Attorney General as having been granted legislative authority. (It is unclear what other kind the authority could be. It cannot be executive or judicial authority, because those are not Congress’ to delegate.) Burger says invalidating the one-house veto and removing a check on delegated authority will not sanction lawmaking by the Attorney General. This claim is inconsistent with Burger’s own definition, in this opinion, of what constitutes lawmaking. He defined an act as legislative if it has the character and effect of legislation. By this definition, the Attorney General and other agencies granted authority by the legislature already engage in legislating. Agency rules without a doubt have the force and effect of law, and regulate our lives arguably more than congressional statutes. Burger’s claim that the Attorney General cannot engage in lawmaking simply will not work when held next to his own definition of lawmaking. Perhaps he means that following the provisions of a law cannot amount to lawmaking, even though in this case the law requires that the Attorney General make independent policy decisions. That is not a very convincing argument. Burger attempts to further downplay the Attorney General’s activity as lawmaking by saying that the executive’s activities cannot reach beyond the limits imposed by the statute delegating the authority. While this is true, the fact that the Attorney General’s rulemaking authority is limited makes no difference in his ability to make rules, and those rules have the force and effect of law. Burger concludes that not even a bicameral check on the Attorney General’s authority is necessary to reserve legislating to the legislature, but this conclusion is rather questionable considering the arguments against the claims he uses to support his conclusion.
The second separation of powers issue concerns Congress attempting to administer its own laws. Burger says Congress cannot constitutionally control the administration of its laws by way of a congressional veto. The later case Bowsher v. Synar supports this idea. This is a very strong argument. Administration of laws is without question a function of the executive. However, Chadha is not a case of pure administration, because the executive has been granted the authority to “legislate” on its own in this area. In employing a veto over an exercise of that authority, Congress could be merely vetoing the legislation itself, rather than interfering with administering the legislation. At the same time, though, the executive’s “legislating” could itself be seen as executing the law. The law granted the Attorney General authority over an aspect of immigration, and in using that authority, he is complying with the terms of the law, carrying the law into effect, executing the law. Seen in this way, a one-house, or even a two-house, veto would amount to Congress attempting to control the administration of its laws.
This case concerns whether, and how, Congress may check the authority it has delegated to the executive branch. This might be a political question that the Court should not decide, because it involves a duly enacted law specifying how two branches of government will interact with each other on a certain issue, and both branches seem content with the law. But it also might not be merely a political question. There are some laws that would be unconstitutional even though the legislature and executive agree on them. For example, if the legislature and executive agree on a law abridging freedom of speech, or establishing a national religion, or perhaps even allowing one house of Congress to veto activities of an executive agency, the Court would hold the law unconstitutional, no matter that the other two branches agree on the law. It would be a justiciable, rather than a purely political, question because the constitution directly or indirectly considers the question. The Court declares this case to be justiciable, presumably because it concerns separation of powers, and how Congress shall pass laws, both of which the constitution addresses.
Burger bases his arguments on a consideration of what the Framers intended, as determined from records of the Constitutional Convention, but it is hard to know for sure what they really intended. For that matter, it may not even be relevant. As the dissent points out, the federal government and the nation are profoundly different from when the Framers wrote the constitution. One could argue that their intent no longer matters, because they wrote the constitution so that it would be flexible enough to accommodate unforeseen developments and circumstances. The exponential growth of the federal government is a good example of such recent developments. In addition, since the Framers could not have known the government would grow as it has, how could their intentions apply in any absolute way? But looking at the Framers’ intentions is one way of addressing the underlying values of the constitution, and that seems to be what Burger is concerned with.
Burger has two discussions going on at the same time in this opinion. He mixes the separation of powers issue with the issue of how Congress is supposed to pass laws. The case could not have been decided solely on the separation of powers issue, as the dissent would have it, because the two issues are intimately connected in this case. It is nearly impossible to separate the two issues, and doing so would not do the case justice.
Before condemning the one-house veto as unconstitutional, Burger must define it as an exercise of legislative power. He says that a legislative act is determined not by its form, but rather by whether it is regarded as legislative in character and effect. This seems like a circular argument: that a legislative act is legislative, and he knows it when he sees it. But he might be trying to express the idea that legislative acts are not limited only to bills, but also may include resolutions, orders, or anything else Congress does that requires a vote. The language of Art. I, § 7, cl. 3 supports this. Burger defines the “legislative character” of the one-house veto in three ways, and one of the ways is problematic. He says the veto is by nature legislative because it supplants previous congressional legislation, but this is not exactly true. The veto checks one use of a delegated power, but it does not take away the entire delegated authority, so it cannot be seen as supplanting the previous congressional delegation. It is interesting that Burger thinks he must support his contention with three reasons highlighting the nature and effect of the veto. I think it is pretty clear that anything the legislature does is legislative in character.
Once Burger decides the veto is a legislative act, he discusses the constitutional requirements for legislative acts: presentment and bicameralism. Burger says that presentment and bicameralism place checks on congressional power, protecting the president from Congress, and the nation from improvident laws, and that one reason the one-house veto is a bad idea is because the veto power is not checked by anything. This is true; the House could veto activities that the Senate wants to permit. As far as presentment is concerned, however, the executive does not need protection from the legislature in this case. Congress is the one who delegated this legislative power to the executive in the first place, and the power ultimately resides in Congress. The legislative veto is then more a way of protecting Congress and the nation from the executive’s use of legislative authority. At the same time, though, Congress could effect a check on the delegated power in the usual bicameral-presentment way without resorting to a one-house veto.
One problem with Burger’s presentment-bicameralism argument is that he ignores the very difficult fact that the law delegating authority to the executive and providing for a one-house veto was itself passed by both houses and approved by the president. This takes us back to determining whether this is a political question. Burger does not explicitly address this issue, but he effectively implies that the reason the law is unconstitutional is because it creates something unconstitutional. For Congress to pass a law requiring it to do something amounts to Congress executing its own law. This leads us into the separation of powers issue.
Burger’s approach to separation of powers is not such a formalistic, narrow approach as the Court had in Youngstown. In this case, he says the powers of the three branches are not sealed from one another, but they are functionally identifiable. The discussion is complicated because there are two separation of powers considerations at work at the same time, although Burger does not want to address the first one, the issue of Congress delegating its legislative authority to the executive branch. The executive has this power only because Congress gave it the power, not because the constitution gives it the power. In this way, it seems absurd for the Court to talk about Congress infringing on another branch’s powers. One perspective on this case is that Congress is not interfering with the executive’s executing laws, but rather with the executive’s making laws, although the Court refuses to see the executive as making laws.
The central question is how, or if, Congress may check the authority it has granted to the executive. The authority was Congress’ to begin with, but the Court does not want to allow a check, unicamerally or bicamerally either one, on the power. The implication of Burger’s position is that Congress would have to pass a law and have it approved by the president before it could place a check on power it has delegated to the executive. It seems odd that Congress would have to get the president’s approval (or override his disapproval) in order to check a power granted and reserved to it by the constitution. Perhaps Congress should not delegate away its authority at all if it is not able to oversee how the authority is used.
Delegating legislative authority to the executive might violate the separation of powers principle, but later cases seem to permit some degree of commingling between branches, and the Court has permitted Congress to establish and delegate power to agencies. Burger, however, refuses to see the Attorney General as having been granted legislative authority. (It is unclear what other kind the authority could be. It cannot be executive or judicial authority, because those are not Congress’ to delegate.) Burger says invalidating the one-house veto and removing a check on delegated authority will not sanction lawmaking by the Attorney General. This claim is inconsistent with Burger’s own definition, in this opinion, of what constitutes lawmaking. He defined an act as legislative if it has the character and effect of legislation. By this definition, the Attorney General and other agencies granted authority by the legislature already engage in legislating. Agency rules without a doubt have the force and effect of law, and regulate our lives arguably more than congressional statutes. Burger’s claim that the Attorney General cannot engage in lawmaking simply will not work when held next to his own definition of lawmaking. Perhaps he means that following the provisions of a law cannot amount to lawmaking, even though in this case the law requires that the Attorney General make independent policy decisions. That is not a very convincing argument. Burger attempts to further downplay the Attorney General’s activity as lawmaking by saying that the executive’s activities cannot reach beyond the limits imposed by the statute delegating the authority. While this is true, the fact that the Attorney General’s rulemaking authority is limited makes no difference in his ability to make rules, and those rules have the force and effect of law. Burger concludes that not even a bicameral check on the Attorney General’s authority is necessary to reserve legislating to the legislature, but this conclusion is rather questionable considering the arguments against the claims he uses to support his conclusion.
The second separation of powers issue concerns Congress attempting to administer its own laws. Burger says Congress cannot constitutionally control the administration of its laws by way of a congressional veto. The later case Bowsher v. Synar supports this idea. This is a very strong argument. Administration of laws is without question a function of the executive. However, Chadha is not a case of pure administration, because the executive has been granted the authority to “legislate” on its own in this area. In employing a veto over an exercise of that authority, Congress could be merely vetoing the legislation itself, rather than interfering with administering the legislation. At the same time, though, the executive’s “legislating” could itself be seen as executing the law. The law granted the Attorney General authority over an aspect of immigration, and in using that authority, he is complying with the terms of the law, carrying the law into effect, executing the law. Seen in this way, a one-house, or even a two-house, veto would amount to Congress attempting to control the administration of its laws.
Thursday, July 17, 2008
Analysis of National League of Cities v. Usery
This case in concerned with the question of whether Congress may regulate the wages that states pay their employees and the hours the employees work. The Court says regulating a state’s employment conditions must be left to the states because their regulation by the states themselves is essential to the states’ being able to function effectively in a federal system. This is a laudatory defense of federalism, but it is contradictory to the Court’s history of commerce clause rulings that favor nationalism at the expense of federalism. (For this discussion, “commerce” includes employment.) The Court has almost completely voided the federal system where regulating commerce is concerned. In its decisions from National Labor Relations Board to Darby (at least), the Court has interpreted the commerce clause so broadly that Congress may now regulate any intrastate activity, no matter how local or how indirectly it affects interstate commerce. There is hardly anything left of the states’ rights to regulate their own intrastate commerce. The federal government makes this very argument in its claim that past rulings support that it can now regulate a state’s employment conditions.
The Court disagrees with the government’s conclusion by drawing an interesting distinction between a state involved in commerce and a private person involved in commerce. The Court says that a state is not “merely a factor in the ‘shifting economic arrangements’ of the private sector of the economy” (p. 172), but that the state is a unit of government. This implies that Congress may regulate any economic arrangement among private entities, an implication consistent with the Court’s rulings, but may not regulate economic arrangements when a state government is a party. One is left to wonder if, were a state to seize control of all private commerce within its borders, Congress then could not regulate any of that commerce because the state would be a party. I believe the Court would find that Congress could regulate it because of the effect all that intrastate commerce would have on interstate commerce. The Court has historically been concerned not with the parties to an intrastate activity, but the effect a particular activity has on interstate commerce. On the other hand, the Court may allow Congress to regulate intrastate commerce in that situation for a different reason. One of its points in this opinion is that, by regulating states’ employment conditions, Congress will affect the governmental services the states have traditionally provided to their citizens. Administering the whole of a state’s economy is not a service the states have traditionally provided to their citizens, and it is likely the Court would recognize that distinction.
In this case, the Court seems to recognize that is has backed itself into a corner with its broad interpretations of commerce clause power and is now looking for a way out. What the Court really is saying in this case is that it must draw a distinction between states and private persons if it is to be able to retain a federalism at all. The Court is correct in that it must create this distinction if it wishes to retain a federalism and at the same time remain consistent with prior Court decisions, but unfortunately this distinction will not work. Drawing a distinction between the commercial affairs of a state as a government and the commercial affairs of a state as a unit in a federalism is artificial and meaningless. The difference between a government and a private business is obvious enough, but the power to regulate both intrastate entities is the same power. In both instances, the state is regulating its own affairs. The specifics of the particular affair, the parties to it, are not relevant. If the Court must preserve the federalism, it cannot claim to divide the concept of federalism into two parts and preserve only one but not the other. The concept is indivisible.
In insisting on this distinction, the Court shows that it is unable to stomach the implications of its own decisions. The Court has previously ruled that Congress may regulate commerce that is purely local, or even local activities that are not even in commerce (Wickard, p. 190). Those decisions infringe on states’ rights to regulate their own intrastate commerce, conferring that power on Congress instead. But now, when the full implications of that power emerge: that when Congress may regulate intrastate commerce, it also must necessarily regulate the parties to the commerce, which could include the states themselves if they are a party, now the Court sees it has gone too far and it wants to rein in some of that commerce clause power. But in so doing, it finds that it must overrule only one case, Wirtz, which is not even the most significant one. It should have cut off Congress’ power at the latest in Darby, rather than giving Congress the power to regulate the wages paid to, and the hours worked by, employees in private industry. And if the Court did not cut off Congress’ power in Darby, it certainly should have stopped at Wickard, rather than giving Congress the power to regulate any activity, however local, that in any way affected interstate commerce. To the Court’s credit, though, the government cites only Wirtz and Fry, and it is with those cases that the Court must concern itself, but the Court surely could have addressed Darby, because that case addressed the same Act addressed in this case.
The Court must overrule Wirtz because its opinion, that a state is no different from a private person when Congress wants to regulate intrastate commerce, directly contradicts the Court’s opinion in this case. But it manages to find its holding in this case consistent with its holding in Fry. In Fry, as this opinion tells us, the Court allowed Congress to freeze the wages that state and local governments paid their employees, which is a federal regulation exactly of the type being considered here. The Court finds a difference between that case and this one: in Fry, the regulation was for a very limited time and was occasioned by an “extremely serious problem” (173). The Court says the problem “endangered the well-being of all the component parts of our federal system” (173). This may or may not have been a different situation. If the problem was a direct threat or harm to interstate commerce, then I agree that Congress has the power to regulate it, even if that means regulating intrastate commerce. However, the Court has been rather loose in determining when something rises to the level of a direct harm required for a congressional regulation, and I am reluctant to accept its argument here. I am made even more reluctant by the Court’s statement that the limits placed on Congress in applying the commerce power to the states “are not so inflexible as to preclude temporary enactments tailored to combat a national emergency” (173). I think they must be so inflexible. When things are going badly is when we need our constitution the most. When our rights are threatened is when we need to protect them. The wise Chief Justice Hughes said “Extraordinary conditions do not create or enlarge constitutional power” (Schechter, p.179), and this Court would do well to heed his words.
- Sunil Khemaney
The Court disagrees with the government’s conclusion by drawing an interesting distinction between a state involved in commerce and a private person involved in commerce. The Court says that a state is not “merely a factor in the ‘shifting economic arrangements’ of the private sector of the economy” (p. 172), but that the state is a unit of government. This implies that Congress may regulate any economic arrangement among private entities, an implication consistent with the Court’s rulings, but may not regulate economic arrangements when a state government is a party. One is left to wonder if, were a state to seize control of all private commerce within its borders, Congress then could not regulate any of that commerce because the state would be a party. I believe the Court would find that Congress could regulate it because of the effect all that intrastate commerce would have on interstate commerce. The Court has historically been concerned not with the parties to an intrastate activity, but the effect a particular activity has on interstate commerce. On the other hand, the Court may allow Congress to regulate intrastate commerce in that situation for a different reason. One of its points in this opinion is that, by regulating states’ employment conditions, Congress will affect the governmental services the states have traditionally provided to their citizens. Administering the whole of a state’s economy is not a service the states have traditionally provided to their citizens, and it is likely the Court would recognize that distinction.
In this case, the Court seems to recognize that is has backed itself into a corner with its broad interpretations of commerce clause power and is now looking for a way out. What the Court really is saying in this case is that it must draw a distinction between states and private persons if it is to be able to retain a federalism at all. The Court is correct in that it must create this distinction if it wishes to retain a federalism and at the same time remain consistent with prior Court decisions, but unfortunately this distinction will not work. Drawing a distinction between the commercial affairs of a state as a government and the commercial affairs of a state as a unit in a federalism is artificial and meaningless. The difference between a government and a private business is obvious enough, but the power to regulate both intrastate entities is the same power. In both instances, the state is regulating its own affairs. The specifics of the particular affair, the parties to it, are not relevant. If the Court must preserve the federalism, it cannot claim to divide the concept of federalism into two parts and preserve only one but not the other. The concept is indivisible.
In insisting on this distinction, the Court shows that it is unable to stomach the implications of its own decisions. The Court has previously ruled that Congress may regulate commerce that is purely local, or even local activities that are not even in commerce (Wickard, p. 190). Those decisions infringe on states’ rights to regulate their own intrastate commerce, conferring that power on Congress instead. But now, when the full implications of that power emerge: that when Congress may regulate intrastate commerce, it also must necessarily regulate the parties to the commerce, which could include the states themselves if they are a party, now the Court sees it has gone too far and it wants to rein in some of that commerce clause power. But in so doing, it finds that it must overrule only one case, Wirtz, which is not even the most significant one. It should have cut off Congress’ power at the latest in Darby, rather than giving Congress the power to regulate the wages paid to, and the hours worked by, employees in private industry. And if the Court did not cut off Congress’ power in Darby, it certainly should have stopped at Wickard, rather than giving Congress the power to regulate any activity, however local, that in any way affected interstate commerce. To the Court’s credit, though, the government cites only Wirtz and Fry, and it is with those cases that the Court must concern itself, but the Court surely could have addressed Darby, because that case addressed the same Act addressed in this case.
The Court must overrule Wirtz because its opinion, that a state is no different from a private person when Congress wants to regulate intrastate commerce, directly contradicts the Court’s opinion in this case. But it manages to find its holding in this case consistent with its holding in Fry. In Fry, as this opinion tells us, the Court allowed Congress to freeze the wages that state and local governments paid their employees, which is a federal regulation exactly of the type being considered here. The Court finds a difference between that case and this one: in Fry, the regulation was for a very limited time and was occasioned by an “extremely serious problem” (173). The Court says the problem “endangered the well-being of all the component parts of our federal system” (173). This may or may not have been a different situation. If the problem was a direct threat or harm to interstate commerce, then I agree that Congress has the power to regulate it, even if that means regulating intrastate commerce. However, the Court has been rather loose in determining when something rises to the level of a direct harm required for a congressional regulation, and I am reluctant to accept its argument here. I am made even more reluctant by the Court’s statement that the limits placed on Congress in applying the commerce power to the states “are not so inflexible as to preclude temporary enactments tailored to combat a national emergency” (173). I think they must be so inflexible. When things are going badly is when we need our constitution the most. When our rights are threatened is when we need to protect them. The wise Chief Justice Hughes said “Extraordinary conditions do not create or enlarge constitutional power” (Schechter, p.179), and this Court would do well to heed his words.
- Sunil Khemaney
Wednesday, July 16, 2008
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