Amicus Curiae Brief — Clinton v. City of New York

oe Supreme Court, U.S. |

No. 97-1374 \!¥, FILED

- APA SB 1998

IN THE

- LERK

Supreme Court of the United —

OCTOBER TERM, 1997

>

WILLIAM J. CLINTON, et al.,

Appellants,

vs.

CITY OF NEW YORK, et ai.,

Appellees.

ROBERT E. RUBIN,

Appellant,

vs.

SNAKE RIVER POTATO GROWERS, INC., et ai.,

Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF THE ASSOCIATION OF THE BAR

OF THE CITY OF NEW YORK AS AMICUS

CURIAE IN SUPPORT OF APPELLEES

ASSOCIATION OF THE Bar OF THE

Crry Or New York

42 West 44th Street

New York, New York 10036-6690

(212) 382-6600

Louis A. Craco, Jr., Chair

JAMES F. PARVER

Committee on Federal Legislation

Davip P. FELSHER

Counsel of Record

LT

——

145657 (800) 274-3321 » (800) 359-6859 OF

| een oon BS orices, inc.

BEST AVAILABLE COPY?

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................... li

INTEREST OF AMICUS ........................ l

SUMMARY OF ARGUMENT ................... l

CPOE 6645 <Nbcndentincceccuetiel ee 2

I. THE ACT VIOLATES THE PRESENTMENT

CLAUSE AND OFFENDS THE PRINCIPLES

OF BICAMERALISM AND SEPARATION OF

PPD a4 veces edeue adele: enn 2

A. Congress May Not Legislatively Alter the

Lawmaking Requirements of Article ... 3

B. The Line Item Veto Upsets the Constitutional

Balance of Power .................... 5

C. The Act is an Unconstitutional Attempt to

Delegate Congressional Authority ....... 9

Il. THE ACT VIOLATES THE RULES

RD 9 4c40 004045 Na sash ee 13

GORE 6 cn cccedtacasneuxcaaene 16

ii

TABLE OF AUTHORITIES

Page

Cases: .

Buckley v. Valeo, 424 U.S. 1 (1976) ............... 2

Byrd v. Raines, 956 F. Supp. 25 (D. D.C.), vacated and

remanded on standing grounds, 117 S. Ct. 2312

eee Reece es ccccccceccceces 10

City of New York v. Clinton, 985 F. Supp. 168 (D. D.C.

Se Dd cee cccccccoececees 10

Federal Energy Administration v. Algonquin SNG,

I EE 12

Field v. Clark, 143 U.S. 649 (1892) ............... 10, 12

Immigration and Naturalization Service y.

Chadha, 462 U.S. 919 (1983) ........... 3n.4, 4, 7, 10

J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

eee eee See boecocevencees 10, 11, 12

Loving v. United States, 116 S. Ct. 1737 (1996) ..... 9

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) .. 10

Raines v. Byrd, 117 S. Ct. 2312 (1997) ........ In.2, 6n.7, 7

United States v. Ballin, 144 U.S. 1 (1892) .......... 14

United States v. Smith, 286 U.S. 6 (1932) .......... 14

Page

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

GUEUED cedvucécctsccssvecevestwesscncaboenss 3

Wright v. United States, 302 U.S. 583 (1938) ....... 7

Yakus v. United States, 321 U.S. 414 (1944) ........ 12

Youngstown Sheet & Tube Co. v. Sawyer,

SO ED coc cececcsdvcsceccocssees 10, 11

Constitution, Statutes and Rules:

REISS oo ccccctesccccveescvccvvneiescstecevins 3

SIE cesceuscoseasescenesteoneud«edsaieas 3, 10, 11

Rs ae GO cccocccesccccescevecessécewades 3n.4

GR ee DAG ccvccscvvcvccsccoesevethesanes 3n.4

SIE ccccocescseeséeuesesdeneseeseseeian 3n.4

GR ERG SD ccccceccccosccecsecescseteutv’ 13

Se eG cb cccveccoscovesenvesésséevensa passim

GENES ccccccccecesccscosceeecsceoenssens 3n.4

GS eG DS cvccccceccesceccecesacnavests 3n.4

Sn cnacounsuesesesedéssblsknscunanu 11

iv

Page

RABY cccccccccccccccatecncnsescsseeessesees 3n.4

Amendment XII .......... ESP Np DO Lr 3n.4

2 U.S.C. §§ 691, et seq. (Supp. II 1996) ........... l

2 U.S.C. § 691 (Supp. II 1996) ...........----00e 13

2 U.S.C. § 691(a)(B) (Supp. II 1996) .............. 8

2 U.S.C. § 69la(c)(1) (Supp. 11 1996) ............. x

2 U.S.C. § 69la(c)(2) (Supp. 11 1996) ............. 8

2 U.S.C. § 691b(a) (Supp. I] 1996) ............... x

2 U.S.C. § 691d(a) (Supp. II] 1996) .............-. 14

2 U.S.C. § 691d(b) (Supp. I] 1996) ............... 15

2 U.S.C. § 691d(d) (Supp. II 1996) ............... 15

2 U.S.C. § 691d(e) (Supp. II 1996) ............... 15

2 U.S.C. § 691d(f) (Supp. II 1996) ................ 15

Rules of the House of Representatives in Constitution,

Jefferson's Manual and Rules of the House of

Representatives of the United States, 104th Cong.

(1995) (House Doc. No. 103-42) ..........+.55. 14n.10

Senate Manual, 104th Cong., Ist Sess. (1995) (Senate

Se, Be, GED caccccdddbcccececesceseteetes 14n.10

Page

Other Authorities:

The Federalist No. 47, at 301 (James Madison) (Clinton

En en ae a er 2n.3

The Federalist No. 58, at 359 (James Madison) (Clinton

ee nee 9n.9

Carl McGowan, The President's Veto Power: An Important

Instrument of Conflict in Our Constitutional System,

23 San Diego L. Rev. 791 (1986) ............... 2n.3

William H. Taft, The Presidency: Its Duties, Its Powers,

Its Opportunities and Its Limitations, at 11 (1916) ... 6n.6, 9

Letter from George Washington to Edmund Pendleton

(Sept. 23, 1793) in 33 The Writings of George

Washington, 94, 96 (John C. Fitzpatrick ed. 1940)

SR Oddo CEOS EEN eedeEsedeedeeeersedcoeeseetes 6n.6

99 Cong. Rec. 215, 219, 221 (1953) .............. 13, 14

Ss > GU ED cutucbcctcceccccaseses 13

141 Cong. Rec. $4443-49 (daily ed. Mar. 23,1995) ... — 1n.2

l

INTEREST OF AMICUS'

The Association of the Bar of the City of New York (the

“Association”) is a professional association of more than 21,000

attorneys, the majority of whom practice in New York City.

The Association is chartered to study, address and promote the

rule of law and, where appropriate, the reform of the law. The

Association, by its Committee on Federal Legislation, has

followed attempts in recent years to enact line item veto

legislation’ and has carefully studied the Line Item Veto Act, 2

U.S.C. §§ 691, et seg. (Supp. II 1996) (the “Act”). For the

reasons set forth below, the Association believes that the Line

Item Veto Act is an effort to accomplish an unconstitutional

end by unconstitutional means. If upheld, the Act will

undermine, in fundamental and dangerous ways, the

Constitution's mechanism for federal lawmaking. With the

attached consent of the parties, the Association of the Bar of the

City of New York respectfully submits this brief as amicus curiae

and urges the Court to strike down the Act.

SUMMARY OF ARGUMENT

The Act offends the Constitution in several ways. First, the

Act rearranges the very structure of our government, taking

significant responsibilities from Congress and transferring them

to the Executive. The allocation of power between these

branches is laid out in detail in the Constitution and Congress

~annot change that structure by legislative fiat. Revisions of

iis nature and magnitude require an amendment to the

Constitution. Second, by transferring to the President the power

1. Pursuant to Rule 37.6, this brief was authored and prepared

in its entirety by the Association of the Bar of the City of New York.

2. The Committee's published opinion on an earlier line item

veto bill was read into the Congressional Record. 141 Cong. Rec.

84443-4449 (daily ed. Mar. 23, 1995). The Association by the

Committee filed an amicus curiae brief in Raines v. Byrd, 117 S. Ct.

2312 (1997).

2

unilaterally to cancel portions of existing law, the Act violates

the Presentment Clause and undermines the bicameral structure

of Congress and the separation of powers. Furthermore, the

Act is an impermissible effort by Congress to delegate to the

President its most basic duty -- to determine what the law shall

be. As such, it radically upsets the constitutionally contemplated

process of political compromise within the legislative branch

and between the legislative and executive branches. Third, the

Act establishes rules of procedure for succeeding Congresses,

thereby violating the Rules Clause.

ARGUMENT

I.

THE ACT VIOLATES THE PRESENTMENT CLAUSE

AND OFFENDS THE PRINCIPLES OF

BICAMERALISM AND SEPARATION OF POWERS

The Constitution diffuses power on several levels. Power

is divided between the federal and state sovereigns. Federal power

is further diffused among three branches and legislative power

is reposed in two separate chambers. The separation of powers

among the different branches of the federal government is at

“the heart of our Constitution.” Buckley v. Valeo, 424 U.S. 1,

119 (1976).’

The processes by which these branches bring their diffused

power to bear on federal law is spelled out in detail in the

Constitution. As set forth below, the Line Item Veto Act

impermissibly tampers with these processes and fundamentally

realigns the Constitution’s diffusion of power.

3. The separation of powers doctrine is not merely to protect

each branch from encroachments by the other two branches, but to

protect the people from the undue concentration of power in any

one branch. Carl McGowan, The President's Veto Power: An

important Instrument of Conflict in Our Constitutional System, 23

San Diego L. Rev. 791, 812 (1986); see generally The Federalist No.

47, at 301 (James Madison) (Clinton Rossiter ed., 1961).

3

A. Congress May Not Leyislatively Alter the

Lawmaking Requirements of Article I

This Court has stated that any fundamental change in the

constitutional framework “must come not by legislation adopted

either by Congress or by an individual State, but rather . . . through

the amendment procedures set forth in Article V.” U.S. Term Limits,

Inc. v. Thornton, 514 U.S. 779, 837 (1995).

. Article I, § 1 vests federal legislative power exclusively in a

bicameral Congress. The Presentment Clause, Art. I, § 7, cl. 2,

a the precise procedures by which that legislature may

make law:

Every Bill which shall have passed the House of

Representatives and the Senate, shall, before it becomes

a Law, be presented to the President of the United States:

If he approve he shall sign it, but if not he shall return

it, with his Objections to that House in which it shall

have originated, who shall enter the Objections at large

on their Journal, and proceed to reconsider it. If after

such Reconsideration two thirds of that House shall

agree to pass the Bill, it shall be sent, together with the

Objections, to the other House, by which it shall

likewise be reconsidered, and if approved by two thirds

of that House, it shall become a Law. . . .*

4. Exceptions to this procedure are carefully spelled out in the

Constitution. Examples include the Senate's confirmation of Presidential

appointments pursuant to Article II, § 2, cl. 2; the Senate's ratification

of treaties pursuant to Article II, § 2, cl. 2; the sole power of the House

of Representatives to initiate impeachment proceedings pursuant to

Article I, § 2, cl. 5; the sole power of the Senate to hold trials and to

convict following impeachment charges by the House of

Representatives pursuant to Article I, § 3, cl. 6; the role of Congress in

the election of a President pursuant to Article II, § 1 and the Twelfth

Amendment; and the proposal of a constitutional amendment for

submission to the states pursuant to Article '/. See Immigration and

Naturalization Service v. Chadha, 462 U.S. )19, 955-56 and 955-56

n.21 (1983). Furthermore, each house has the power to act alone in

handling certain specified matters. See Art. I, § 5.

4

The Presentment Clause thus requires that a bill first be

passed in identical form by both the House and the Senate and

then be presented to the President. The President must then

either (i) sign the entire bill into law, (ii) veto the entire bill and

send the entire bill back to Congress for reconsideration; or

(iii) do nothing, in which case the entire bill becomes law after

ten days, unless Congress adjourns within that time. Art. I, § 7,

a. 2.

The legislative steps outlined in Article I are not empty

formalities; they are commands which simultaneously require

and limit the participation of both houses of Congress and the

President in lawmaking. As such, they may be altered only by

constitutional amendment. See Immigration and Naturalization

Service v. Chadha, 462 U.S. 919, 958 n.23 (1983) (“Chadha”).

In Chadha, this Court explained:

Explicit and unambiguous provisions of the

Constitution prescribe and define the respective

functions of the Congress and of the Executive in

the legislative process. . . . These provisions of Art.

I are integral parts of the constitutional design for

the separation of powers. . . . “[T]he principle of

separation of powers was not simply an abstract

generalization in the minds of the Framers: it was

woven into the document that they drafted in

Philadelphia in the summer of 1787.” Buckley v.

Valeo, 424 U.S., at 124.... [T]he Framers were

acutely conscious that the bicameral requirement and

the Presentment Clauses would serve essential

constitutional functions. . . . It emerges clearly that

the prescription for legislative action in Art. I, §§ 1,

7, represents the Framers’ decision that the legislative

power of the Federal Government he exercised in

accord with a single, finely wrought and

exhaustively considered, procedure.

Id. at 945-51.

5

The Line Item Veto Act effects fundamental changes to that

“finely wrought and exhaustively considered, procedure.”

Wholly apart from the damage such changes would do to the

Nation, it is clear that they cannot be achieved by statute. To

change the very structure of its government by permitting a

line item veto, this Nation must amend its Constitution. It has

not.

B. The Line Item Veto Upsets the Constitutional

Balance of Power

The Line Item Veto Act upsets the constitutional framework

by transforming the President’s limited power -- the veto of

entire bills -- into a qualitatively different and far greater one --

the unilateral power to determine that only parts of enacted

bills shall be the law of the land. Indeed, the very purpose of

the Act is to give the President this dramatically expanded power

to change enacted law, rather than merely to execute it. The Act

therefore violates the Presentment Clause and scrambles the

constitutional principles of separation of powers and

bicameralism.

The Constitution decrees that to make, modify or repeal

federal law, a bill must be approved by both houses of Congress.

That bill may then be signed into law in its entirety, allowed to

become law in its entirety by virtue of the President's inaction

for ten days; or enacted into law in its entirety by both houses

of Congress overriding a Presidential veto. Art. I, § 7, cl. 2.

The language of Article 1, § 7, cl. 2 makes plain that bills

are to be approved or disapproved and returned and reconsidered

in toto, not in part. Consequently, if the President wishes to

prevent a bill from becoming law, the President must return it

in its entirety to Congress for reconsideration or refuse to sign

the entire bill.* The Constitution does not authorize the President

5. The Presentment Clause uses the term “it” or “its” 12 times,

refers to “the Bill” twice, and uses the term “reconsider” or

(Cont'd)

6

to accept part of a bill and reject the rest. The in toto requirement

prevents any of the participants from unilaterally revising that

which has been approved by the others and ensw.¢s chat the bill

that becomes law is the same bill that was passed by both houses

of Congress.°

The Line Item Veto Act disregards this constitutional

mandate by authorizing the President to sign an entire bill into

law and then to immediately repeal portions of it — in other

words, to exercise a partial veto. Congress cannot constitutionally

give the President the power to veto portions of a bill presented

by Congress and then sign others into law, as appellants herein

have conceded. (See Brief for the Appellants at 34.)’ The Line

Item Veto Act, however, accomplishes the same result. It allows

bills to become law in a different form than that which majorities

in the House and the Senate passed.

(Cont'd)

“reconsideration” three times. From the context in which those terms

are used, “it”, “its”, and “the Bill” plainly refer to “Every bill which

shall have passed the House of Representatives and the Senate.” In

addition, the last sentence of the Presentment Clause refers to “any

bill” not returned by the President within ten days of presentment

and to “the same.”

6. Accord, Letter from George Washington to Edmund Pendleton

(Sept. 23, 1793) in 33 The Writings of George Washington, 94, 96

(John C. Fitzpatrick ed. 1940) (“From the nature of the Constitution,

I must approve all the parts of a Bill, or reject it in toto”); William H.

Taft, The Presidency: Its Duties, Its Powers, Its Opportunities and

Its Limitations, at 11 (1916) (The President “has no power to veto

part of the bill and allow the rest to become a law”).

7. In Raines v. Byrd, 117 S. Ct. 2312 (1997), the defendants

and their amici conceded this same point in the Supreme Court. See

Brief for the Appellants, at 34; Joint Brief of the United States Senate

and the Bipartisan Legal Advisory Group of the United States House

of Representatives as Amici Curiae for Reversal, at 18.

7

As this Court has recognized:

By providing that no law could take effect without

the concurrence of the prescribed majority of the

Members of both Houses, the Framers reemphasized

their belief. . . that legislation should not be enacted

unless it has been carefully and fully considered by

the Nation’s elected officials.

Chadha, 462 U.S. at 948-49. That requirement lies at the heart

of bicameralism. Yet the Line Item Veto Act sweeps that

fundamental constitutional principle aside. The law that takes

effect after the President exercises the line item veto is different

from the one passed by both houses of Congress. It is one that

was never even considered, much less passed, by both houses

of Congress.

Appellants argue that the Line Item Veto Act and the bill

that has been dissected by the line item veto both pass

constitutional muster because for a brief moment the latter bill,

in its entirety, is signed into law. See Brief for the Appellants, at

34-35. This argument, however, not only elevates form over

substance by ignoring the reality of what occurs, but also

ignores the requirement of the Presentment Clause that Congress

be allowed to reconsider a bill in its entirety whenever the

President’s rejection prevents the bill passed by both houses of

Congress from being the law of the land*. This Court has

indicated that the opportunity for reconsideration by Congress

of a rejected bill is an essential element in the legislative scheme

provided by the Constitution. Wright v. United States, 302 U.S.

583, 596 (1938) (“Where the President does not approve a bill,

the plan of the Constitution is to give to the Congress the

opportunity to consider his objections and io pass the bill despite

his disapproval”); see also Raines v. Byrd, 117 S. Ct. at 2325-

26 (Stevens, J., dissenting).

8. The sole exception to this requirement is in the case of a

pocket veto, when Congress's adjournment prevents the return of

the bill.

8

The Line Item Veto Act also contravenes two other mandates

of the Presentment Clause. First, although the Presentment Clause

limits the President to only ten days to veto a bill after receiving

it, the Line Item Veto Act impermissibly extends that time period.

The President can, for example, wait until the tenth day after a

bill is presented to sign it into law and then wait five additional

days before exercising the line item veto, see 2 U.S.C.

§§ 691(a)(B) & 691a(c)(1) (Supp. II 1996); see also 2 U.S.C.

§ 691b(a) (Supp. II 1996). Second, although the Presentment

Clause requires that the President’s objections to a bill be entered

in the journal of the house originating the bill, the Line Item

Veto Act provides that the President’s cancellations be published

in the Federal Register. See 2 U.S.C. § 69la(c)(2) (Supp. II

1996).

The Line Item Veto Act also significantly changes the

political gravity of the federal government. The Constitution

contemplates, and the history of our Nation has always involved,

a process of give and take between members of Congress and

between Congress and the White House. The Line Item Veto

Act undercuts this tradition by providing the President with a

new and powerful club to wield over each individual member

of Congress -- the authority to cancel expenditures of particular

interest to that member, even after both houses have passed

them and the President has signed them -- unless the member

accommodates the President’s wishes in other matters. To be

confident that any expenditure would survive a line item veto,

each member would be forced to horse-trade with the President

directly, as well as with other members, during the process of

Congressional consideration of each expenditure. This

effectively transforms the President into a superlegislator -- a

result which stands the Framers’ “finely wrought” system on its

head.

President Taft expressed grave concerns over affording the

President the extraordinary power of a line item veto:

ee ee

a

9

Still, I think the power to veto items in an

appropriation bill might give too much power to

the President over congressmen. It is wiser to leave

the remedy for the above to the action of the people

in condemning at the polls the party which becomes

responsible for such riders than to give, in such a

powerful instrument, a temptation to its sinister use

by a President eager for continued political success.

William H. Taft, The Presidency: Its Duties, Its Powers, Its

Opportunities and Its Limitations, supra, at 20.

Such an unprecedented accumulation of power in the

President’s hands fundamentally alters the nature of the

lawmaking dialogue between the branches and, to some extent,

transfers the ultimate power of the purse from the legislature to

the executive.°

This reality also belies the notion that the line item veto is

limited to certain budgetary matters. While the Act restricts the

use of the line item veto to budgetary matters, it is obvious that

the President can use the threat of a line item veto to coerce

cooperation from individual members of Congress on non-

budgetary issues.

C. The Act is an Unconstitutional Attempt to Delegate

Congressional Authority

This Court has repeatedly held “the lawmaking function

belongs to Congress, U.S. Const., Art. 1, §1, and may not be

conveyed to another branch or entity.” Loving v. United States,

116 S. Ct. 1737, 1744 (1996). Accordingly, “Congress

9. The Framers feared combining the power of the purse with

the power of the sword. See The Federalist No. 58, at 359 (James

Madison) (Clinton Rossiter ed., 1961) (“[t)his power over the purse

may, in fact, be regarded as the most complete and effectual weapon

with which any constitution can arm the immediate representatives

of the people... .”).

10

manifestly is not permitted to abdicate, or to transfer to others,

the essential legislative functions with which it is ... vested.”

Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). “[I]t

is a breach of the National fundamental law if Congress gives

up its legislative power and transfers it to the President... .”

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406

(1928); see also Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 655 (1952) (Jackson, J., concurring) (“The Executive,

except for recommendation and veto, has no legislative power”);

Field v. Clark, 143 U.S. 649, 692 (1892) (“That Congress

cannot delegate legislative power to the President is a principle

universally recognized as vital to the integrity and maintenance

of the system of government ordained by the Constitution”).

The power to repeal or amend existing law is indisputably

a legislative power, which the Constitution vests solely in the

Congress. See Art. I, § 1; Chadha, 462 U.S. at 954. The Line

Item Veto Act is an unprecedented attempt by Congress to

alienate that basic legislative function. As the District Court

explained in Byrd v. Raines, 956 F. Supp. 25 (D. D.C.), vacated

and remanded on standing grounds, 117 S. Ct. 2312 (1997):

the cancellation power conferred by the Act is indeed

revolutionary.... Never before has Congress

attempted to give away the power to shape the

content of a statute of the United States, as the Act

purports to do. As expansive as its delegations of

power may have been in the past, none has gone so

far as to transfer the function of repealing a provision

of statutory law.

Id. at 37 (emphasis added). See also City of New York v. Clinton,

985 F. Supp. 168, 181 (D. D.C. 1998) (“The Line Item Veto

Act impermissibly crosses the line between acceptable delegation

of rulemaking authority and unauthorized surrender to the

President of an inherently legislative function, namely, the

authority to permanently shape laws and package legislation”)

(emphasis added).

Moreover, Article I, § 1 vests all legislative power in

Congress. Executive power is limited to faithfully executing

the laws. See Art. II, § 3. As this Court explained in Youngstown

Sheet & Tube Co., 343 U.S. at 587:

In the framework of our Constitution, the President's

power to see that the laws are faithfully executed

refutes the idea that he is to be a lawmaker. The

Constitution limits his functions in the lawmaking

process to the recommending of laws he thinks wise

and the vetoing of laws he thinks bad. And the

Constitution is neither silent nor equivocal about

who shall make laws which the President is to

execute.

The Line Item Veto Act violates this fundamental principle

by granting to the President the power to be the lawmaker. The

Act authorizes the President to pick and choose among portions

of enacted law and determine which pieces shall remain the

law. Congress has thus impermissibly granted the President the

essential legislative power of amending existing law.

Appellants attempt to characterize the Act as a delegation

to the President of authority not to spend duly appropriated

money subject to “intelligible principles” articulated in the Act.

Brief for the Appellants, at 44-49. This Court's holding in J. W.

Hampton, however, illustrates that “intelligible principles”

delegations differ significantly from this unconstitutional attempt

by Congress to divest itself of fundamental lawmaking power.

There, Congress had authorized the President to raise or lower

import tariffs to equalize differences which, after factual

investigation, the President found to exist between foreign and

domestic production of similar products. 276 U.S. at 404-05.

Because Congress lacked information about “changing

conditions” necessary to make the required adjustments, the

delegation was permitted “to give effect to the principle on which

the statute proceeds.” /d. Chief Justice Taft explained:

12

The true distinction, therefore, is, between the

delegation of power to make the law, which

necessarily involves a discretion as to what it shall

be, and conferring an authority or discretion as to

its execution, to be exercised under and in pursuance

of the law. The first cannot be done; to the latter no

valid objection can be made.

Id. at 407, quoting Cincinnati, Wilmington & Zanesville Rail

Road Co. v. Commissioners of Clinton County, | Ohio St. 77,

88-89 (1852).

Similarly, in Field v. Clark, supra, 143 U.S. 649, Congress

authorized the President to suspend temporarily the duty-free

importing of specified goods if he found a country producing

those goods imposed reciprocally unequal or unreasonable

duties upon United States products. “Nothing involving the

expediency or the just operation of such legislation was left to

the determination of the President.” /d. at 693. Congress

determined when the law would be suspended and merely left

it to the President to determine when, and if, those conditions

arose. Faithfully adhering to this principle, this Court has from

time to time permitted Congress to allow the Executive branch

to provide technical expertise or determine whether certain

specified conditions had occurred. See, e.g., Federal Energy

Administration v. Algonquin SNG, Inc., 426 U.S. 548, 559

(1976) (President authorized to adjust petroleum imports by

imposing license fees upon actual findings that specified

considerations had been met); Yakus v. United States, 321 U.S.

414, 423-25 (1944) (Executive may set price ceilings upon

making specific factual determinations.)

No such circumstance exists here. Congress is certainly able

-- indeed, is constitutionally required -- to decide which spending

items and tax benefits should be enacted into law and which

should not. The Line Item Veto Act does not simply entitle the

Executive branch to find facts, to discern contingencies or to

apply expertise -- it invites the President to exercise discretion,

13

unbound by any real parameter, to retain parts of duly enacted

legislation and to repeal others. In short, it is governed by no

“intelligible principle” at all. This Court has never sanctioned

so broad a Congressional abdication of authority and should

not now.

If the Court upholds the power of statutory repeal, which

the Act gives to the President, Congress will be free to provide

the President with the power to rescind any existing law. There

is no tenable constitutional distinction between the “delegation”

here and Congress delegating authority to repeal civil rights

laws, minimum wage laws, laws protecting health and the

environment, or the criminal code.

Il.

THE ACT VIOLATES THE RULES CLAUSE

The Rules Clause of the Constitution provides that “Each

House may determine the Rules of its Proceedings. . . .” Art. I,

§ 5, cl. 2. The Line Item Veto Act is inconsistent with the Rules

Clause for two reasons. First, under the Act, one Congress is

establishing procedural rules for the expedited consideration of

disapproval bills by succeeding Congresses, thus precluding

each chamber in succeeding Congresses from setting its own

rules. Second, the Act allows the President to determine the

items to be canceled and thus limits the content of expedited

disapproval bills. See 2 U.S.C. § 691 (Supp. II 1996).

The Rules Clause explicitly states that each house may

determine its own rules of proceedings. Art. I, § 5, cl. 2. That

means that the membership of each chamber, sitting at the time,

must have the ability to determine that chamber’s internal rules.

Cf 103 Cong. Rec. 178 (1957) (“the right of a current majority

of the Senate at the beginning of a new Congress to adopt its

own rules, stemming as it does from the Constitution itself,

cannot be restricted or limited by rules adopted by a majority

of the Senate in a previous Congress”); 99 Cong. Rec. 215

14

(1953) (“the Senate has a right, under the Constitution of the

United States, to adopt its own rules for every Congress”), 99

Cong. Rec. at 219, 221. Thus, one Congress cannot prevent

the houses of a succeeding Congress from changing their rules

of proceedings. See United States v. Ballin, 144 U.S. 1, 5 (1892)

(“[t]he power to make rules is not one which once exercised is

exhausted. It is a continuous power, always subject to be

exercised by the house, and within the limitations suggested,

absolute and beyond the challenge of any other body or

tribunal”).

Thus, each chamber has the power and authority to set its

own rules regarding a variety of internal matters."° The problem

with legislation, such as the Act, which restricts the rulemaking

power of either chamber is that such legislation can only be

abrogated or amended by a subsequent piece of legislation. The

second piece of legislation must be passed by both chambers

and either approved by the President or enacted over the

President’s veto. This is contrary to the Rules Clause.

Legislation, such as the Act, affecting the internal rulemaking

power of either chamber also results in one chamber of Congress

exercising partial control over the internal rules of the other

chamber. While the Constitution grants each chamber the power

to set its own rules, that power can only be exercised in

conformity with constitutional constraints. See United States v.

Ballin, supra, 144 U.S. at 5; United States v. Smith, 286 U.S.

6, 33 (1932).

Several subsections of the Act violate the Rules Clause by

controlling Congress's internal rules and procedures, as well as

the form and content of bills.

Subsection 691d(a) specifies particular committees within

both the House and Senate to which the President's special

10. See e.g., Rules of the House of Representatives in

Constitution, Jefferson's Manual and Rules of the House of

Representatives of the United States, 104th Cong. (1995) (House

Doc. No. 103-42); Senate Manual, 104th Cong., Ist Sess. (1995)

(Senate Doc. No. 104-1).

15

message shall be referred. Committee referral is a matter

regarding the internal organization and procedures of each

chamber and the Act’s attempt to establish matters of committee

referral for succeeding Congresses violates the Rules Clause.

Subsection 691d(b) sets forth certain time parameters within

which Congress must act upon any expedited disapproval bill.

Such time parameters prevent succeeding chambers from setting

their own calendars and determining when and which bills shall

be heard or voted upon, another clear violation of the Rules

Clause.

Subsections 691d(d) and (e), which deal with consideration

in the House and the Senate, respectively, also violate the Rules

Clause by controlling Congress's internal rules and proced res.

Subsection (d), for example, limits debate in the House on

disapproval bills, precludes motions to reconsider a vote and

restricts the making of other motions. Subsection (e) imposes

similar limitations on proceedings in the Senate.

Finally, subsection 691d(f) infringes on the ability of each

chamber to determine its own rules of proceedings with respect

to a conference report. In connection with the House’s

consideration of a conference report, subsection (f)(2) limits

debates and debatable motions and a motion to recommit is not

in order. Similarly, in connection with the Senate’s consideration

of a conference report, subsection (f)(3) limits debate and a

motion to recommit is not in order. Finally, subsection (f)(4)

places limits on the contents of certain bills when there are

disagreements in amendments to disapproval bills and certain

other amendments in the nature of a substitute.

16

CONCLUSION

The Line Item Veto Act transfers to the President the

fundamental legislative power of deciding what programs should

exist. For over 200 years our system of government, as framed

by the Constitution, has been just the opposite. The purpose of

the Line Item Veto Act is a truly revolutionary attempt to spare

Congress difficult decisions about which programs should exist

by having the President make those decisions in its stead.

Upholding this effort would place the entire system of federal

lawmaking, and the separation of powers itself, in grave

jeopardy. This Court must, on this occasion, protect Congress

from itself, and thereby protect the Nation.

Respectfully submitted,

ASSOCIATION OF THe Bar OF THE

City Or New York

42 West 44th Street

New York, New York 10036-6690

(212) 382-6600

Louis A. Craco, Jr., Chair

James F. PARVER

Committee on Federal Legislation

Davip P. FELSHER

Counsel of Record