Two Times Congress and the President Tried to Trade Jobs Until the Supreme Court Stopped Them
Everyone knows that our federal government is divided into three branches with distinct functions. Congress is the legislative branch. It makes laws. The president is head of the executive branch. He enforces the laws. And the Supreme Court is at the top of the judicial branch, which interprets the laws and applies them to particular cases. But sometimes, one branch tries to take over some functions that rightfully belong to another. Here are two times Congress and the president tried to trade jobs until the Supreme Court stopped them.
1. The Legislative Veto
What it was: When the House of Representatives and Senate pass a bill, the president can either sign it, in which case it becomes law, or veto it. If the president vetoes a bill, Congress can try to override the veto by passing it again with a 2/3 majority in both houses. The legislative veto was like a reverse version of this. It allowed Congress—or one house of Congress, or even just a committee of one house of Congress—to “veto” some executive action. Starting in the early 20th century, Congress built a legislative veto into numerous statutes. One of those was section 244(c)(2) of the Immigration and Naturalization Act. Under that statute, a majority vote in the House of Representatives or Senate could overturn the decision of the Attorney General to allow a deportable immigrant to remain in the United States.
How the Supreme Court stopped it: In 1983, the Supreme Court decided the case of INS v. Chadha. In that case, Chadha overstayed his student visa. When notified that he was going to be deported, he applied for a suspension of deportation. An immigration judge granted the suspension. But, exercising its power under section 244(c)(2), the House of Representatives voted to deport Chadha. Chadha appealed all the way to the Supreme Court, arguing that section 244(c)(2) was unconstitutional. The Supreme Court agreed. It found that the only way for Congress to invalidate the immigration judge’s determination was to change the law that authorized the judge to grant a suspension request. Given that, the attempt by the House of Representatives to overrule the immigration judge was itself an act of legislation that had to be passed by both houses of Congress and presented to the president. Since section 244(c)(2) purported to authorize the House of Representatives to change the law on its own, it was unconstitutional.
2. The Line-Item Veto
What it was: In 1996, President Bill Clinton signed the Line Item Veto Act into law. Under this law, the president had the power to unilaterally amend bills presented to him by canceling certain kinds of tax or spending provisions. In 1997, President Clinton used his line item veto to cancel a provision enacted by Congress that would have waived up to $2.6 billion in payments from the state of New York to the federal government. New York City, which would have had to reimburse the state in the event the state was required to pay the $2.6 billion, sued.
How the Supreme Court stopped it: The Supreme Court decided New York City’s lawsuit in 1998 in Clinton v. City of New York. There, the Court recognized that what the president was doing when he canceled a part of a statute was amending the law. Amending the law requires passage by both houses of Congress and the president’s signature. Because the Line Item Veto Act allowed the president to unilaterally repeal part of a statute without Congress’ involvement, the Court held that it was unconstitutional.
These cases illustrate the importance of the separation of powers in our government. They also highlight how important the independence of the judicial branch is. In both cases, two of the branches of the federal government had agreed to an arrangement that violated the bicameralism and presentment requirements of the U.S. Constitution. Only when the third branch, the judiciary, stepped in was that error corrected. If it weren’t for the checks and balances built into our government of separated powers, Congress and the president could have continued changing the laws in invalid ways.