Commitment and the budget

• Gramm-Rudman Act invalidated in Bowsher is one of a number of structural or “quasi-constitutional” statutes enacted by Congress in recent years designed to control federal spending. These statutes raise fundamental questions concerning the constitutional authority of the political branches to restructure the political process so as to favor certain outcomes.

• One commentator suggested that the Gramm-Rudman act does not and cannot reduce legislative power to spend. Specifically, under the Act, if Congress and the President prefer to evade the consequences of automatic budget cuts, they may readily do so.

• Why didn’t Congress simply enact an ordinary law accomplishing the result it favored instead of proceeding indirectly through the Gramm-Rudman Act.

Appointments power - Congressional control over administrative officials Chadha and Bowsher

• While these two cases both invalidated innovative schemes designed to preserve congressional control of delegated authority, the two decisions utilize different approaches.

• Chadha. Invalidated statute (legislative veto) because it failed to comply with presentment and bicameral requirements for enactment of statutes. Problem with this approach is that in absence of legislative veto, Chadha’s deportation status would be determined by INS, yet the INS’s decision also fails to comply with bicameralism requirement.

• Bowsher. Avoids this difficulty by reversing the analysis; SCt treated Comptroller General’s budget-cutting authority not as legislative, but rather as executive power. SCt. Held that Congress unconstitutionally trenched on executive authority by vesting this authority in an officer under legislative control.

Morrison and Bowsher

• Koppelman: Taken together, these cases are puzzling. According to what account of separation of powers does the law challenged in Bowsher present a danger to the constitutional plan, while no such danger was presented in Morrison or Mistretta?

• SCt distinguishes between

• Statutes designed to assert congressional control over administrative officials (prohibited in Meyers, Chadha, and Bowsher);

• And statutes designed to protect administrative officials from executive control (permitted in Humphrey’s Executor and Morrison and Mistretta).

• According to this view, while Congress may make some executive officers independent, Congress may not itself control them. Thus, this shields administrative officers from accountability to either of the popularly elected branches of government.

Koppelman on Morrison and Mistretta

• Two concerns regarding separation of powers: (1) concentrated power, (2) unaccountable power.

• In these two cases, while majority concerns itself primarily with concentrated power, Scalia’s dissent concerns itself primarily with unaccountable power.

• Both of these cases represent a triumph of anti-formalism.

Non-presidential appointments

• Exactly when can cross-branch appointments be made? Since Morrison, the SCt. Has rejected three additional constitutional challenges to non presidential appointments.