Section 2 Congressional War and Treaty Powers and the Implied Power over Foreign Affairs

Rule of Law

The war power of Congress activated by armed conflict may extend beyond the cessation of hostilities to permit Congress to address the negative effects of war.

Facts

Title II of the Housing and Rent Act of 1947 permitted Congress to regulate rents pursuant to its war powers which were activated by the start of World War II. Cloyd W. Miller Co. (plaintiff) challenged the act against Woods (defendant) in federal district court on the ground that Congress’ ability to regulate rents based on its war power ended with the Presidential Proclamation terminating hostilities on December 31, 1946. This proclamation brought about “peace-in-fact” despite not actually terminating the war itself. The district court agreed and held Title II unconstitutional. Additionally, it concluded that even if the war power did not end with the Presidential Proclamation, Congress did not act under it because it did not say so. Woods appealed to the United States Supreme Court.

Issue

Whether the war power of Congress activated by armed conflict extend beyond the cessation of hostilities to permit Congress to address the negative effects of war.

Holding and Reasoning (Douglas, J.)

Yes. Congress may constitutionally control rents even after the cessation of World War II hostilities because doing so is necessary to remedy the ongoing housing crisis caused by the war. The war power of Congress activated by armed conflict may extend beyond the cessation of hostilities to permit Congress to address the negative effects of war. This war power may not extend indefinitely, but may continue as long as a significant need exists because of the war that is capable of being addressed by congressional action. World War II caused a significant deficit in housing due to the heavy demobilization of veterans and the cessation or reduction of residential construction during the period of hostilities for the purpose of conserving building materials for the war effort. Congress passed Title II of the Housing and Rent Act to directly respond to this housing shortage. When doing so, it acted pursuant to its Constitutional war powers, as well as the Necessary and Proper Clause (permits Congress to pass whatever laws it deems “necessary and proper” to carry out its other enumerated constitutional powers). Nowhere in the legislative history of Title II did Congress suggest it intended to extend its wartime rent control powers anywhere beyond the specific housing crisis which was greatly intensified by World War II hostilities. While there is always a chance that Congress may abuse its war powers by extending them well beyond the cessation of hostilities, there is no indication that Congress has acted in such a way here. Title II is an appropriate exercise of Congressional power after the conclusion of hostilities because controlling rent is still necessary to remedy the ongoing housing crisis caused by the war. The decision of the district court is reversed.

  • The Crux of this issue is if congress does not have this authority then that authority would go back to the states. Set up conflicts of powers.

  • During Wartime Congress has expanded powers. BUT when it is not wartime then those powers goes away. That means that during peacetimes then that power goes back to the states.

Concurrence (Jackson, J.)

It is dangerous to justify the result reached by the majority solely by invoking Congress’ vague “war power.” The war power is generally always hastily invoked and not always executed with careful consideration of the consequences. However, while it is true that war powers should not be permitted to extend for the full amount of time that the effects and consequences of war are present, there is no indication that this was Congress’ intent in enacting Title II. While formal hostilities have ceased, the United States is still technically in a state of war. There is very much a need for Congressional action to address the ongoing housing crisis, and Title II should be upheld as constitutional.

Rule of Law

A treaty that infringes the rights reserved to the states under the Tenth Amendment to the United States Constitution may nevertheless be considered valid if it is made under the authority of the United States and is thus the supreme law of the land.

Facts

On December 8, 1916, the president of the United States entered into a treaty with Great Britain that provided greater protection for migratory birds. Both the United States and Great Britain agreed that their legislatures would pass laws enforcing the treaty. In response, the United States passed the Migratory Bird Treaty Act of July 3, 1918, which prohibited the killing, capturing, or selling of any of the migratory birds protected by the treaty, except as permitted by additional regulations passed by the secretary of agriculture. Missouri (plaintiff) brought a bill in equity to prevent Holland (defendant), a United States game warden, from enforcing the act. Missouri alleged primarily that the statute was an unconstitutional interference with the rights reserved to the states by the Tenth Amendment to the United States Constitution. The district court dismissed the bill on the ground that the statute was constitutional, and Missouri appealed.

Issue

May a treaty that infringes the rights reserved to the states under the Tenth Amendment to the United States Constitution be considered valid if an act of Congress performing the same function would be invalid?

Holding and Reasoning (Holmes, J.)

Yes. The migratory bird treaty and subsequent Migratory Bird Treaty Act are valid exercises of United States government power. A treaty that infringes the rights reserved to the states under the Tenth Amendment to the United States Constitution may nevertheless be considered valid if it is made under the authority of the United States and is thus the supreme law of the land. The Tenth Amendment to the United States Constitution reserves to the states all powers not delegated to the federal government of the United States. Article 2, Section 2 of the Constitution expressly delegates the power to make treaties to the federal government, and under Article 6, all treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared to be the supreme law of the land. Thus, if a treaty is valid, any statute made to implement it is also necessarily valid under Article 1, Section 8 of the Constitution, which permits all legislative acts that are necessary and proper to execute the powers of the federal government (including the treaty power). The migratory bird treaty made by the president with Great Britain is valid, as it was made under the authority of the United States. It does not matter that the treaty regulated migratory birds that were located briefly within the borders of Missouri. The federal government routinely carries out its express powers under the Constitution by acts of Congress regulating activities and functions that happen to fall within the borders of a state and that would be regulated by the state itself in the absence of the relevant express federal power. There is no reason to treat international treaties differently. An international treaty may regulate activities falling within a state’s borders if it is made under the authority of the United States and is thus valid. Similarly, if a treaty is valid, it follows that a statute made to implement the treaty is also valid. The migratory bird treaty is valid, and thus the Migratory Bird Treaty Act, passed to enforce the treaty, is also valid. The decision of the lower courts to dismiss the case is affirmed.

SECTION 4: CONRESSIONA LAUTHORITY TO RESTRIAIN AND ENABE THE EXECUTIVE:

  • One way for Congress to retain control over executive action is to be very specific and limiting in teh delegation of power to agencies so that the agencies rulemaking power in turn will be limited.

Rule of Law

Legislation providing Congress with a one-house veto over an action of the executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism.

Facts

Congress passed § 244(c)(2) of the Immigration and Nationality Act (INA) authorizing one house of Congress, by resolution, to invalidate an executive determination that allowed a deportable person to remain in the United States. Jagdish Rai Chadha (plaintiff), a Kenyan citizen, lawfully came to the United States on a student visa, but he remained after the visa expired. The Immigration and Naturalization Service (INS) (defendant) ordered Chadha to show cause why he should not be deported. Chadha applied for a suspension of deportation. After a deportation hearing, an immigration judge suspended Chadha’s deportation under § 244(a)(1) of the INA, which allows the attorney general to exercise his or her discretion to suspend a deportation. The suspension was reported to Congress pursuant to § 244(a)(1). However, after considering 340 cases, the House of Representatives passed a resolution vetoing Chadha’s suspension and the suspension of five other individuals pursuant to § 244(c)(2). The immigration judge reopened the deportation proceeding and eventually ordered that Chadha be deported. Although Chadha argued that § 244(c)(2) was unconstitutional, the immigration judge concluded that he did not have the power to rule on the statute’s constitutionality. Chadha appealed the decision to the Board of Immigration Appeals, which dismissed his action and also held that it had no power to rule that the statute was unconstitutional. Chadha then petitioned the United States Court of Appeals for the Ninth Circuit for review of the deportation order. In the Ninth Circuit, the INS agreed with Chadha that § 244(c)(2) was unconstitutional. The Ninth Circuit directed the United States House of Representatives and Senate to submit amicus curiae briefs on the issue. The Ninth Circuit ultimately ruled in Chadha’s favor and held that Congress could not overturn the decision of the attorney general, and the court ordered the attorney general to stop the deportation process. The United States Supreme Court granted certiorari.

Issue

Is legislation providing Congress with a one-house veto over an action of the executive branch unconstitutional?

Holding and Reasoning (Burger, C.J.)

Yes. Legislation providing Congress with a one-house veto over an action of the executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism. Article I of the Constitution requires that all legislation be presented to the president before becoming law. The Framers carefully crafted this requirement into the Constitution. Additionally, the Framers required bicameralism in the enactment of any law, i.e., a law could not be passed without gaining support from a majority of both houses. The Great Compromise established this provision, requiring the approval of both houses to accommodate representation concerns by smaller states. The requirements of presentment and bicameralism under Article I do not apply to every action taken by either house of Congress; rather, they apply only to an exercise of legislative power. To be an exercise of legislative power, an action must be legislative in its purpose and effect. In this case, § 244(c)(2) is legislative in purpose and effect because it altered the legal rights, duties, and relations of people, including the attorney general, executive branch officials, and Chadha. This extensive type of action is historically permitted only by a legislative act of Congress. Moreover, the Constitution includes specific enumerated instances granting one house of Congress the unilateral power to act, such as the power of the House of Representatives to initiate impeachment proceedings and the power of the Senate to ratify treaties and approve or disapprove of presidential appointments. Section 244(c)(2) is not included in one of these express authorizations of unilateral power, and congressional power in this area cannot be implied. Accordingly, § 244(c)(2) of the INA is unconstitutional and is severable from the remainder of the statute. The decision of the court of appeals is affirmed.

Concurrence (Powell, J.)

The House of Representatives acted inappropriately in determining that Chadha and the other five individuals do not meet the statutory criteria for continued residence in the United States. These types of determinations are typically left to other branches of government. Allowing the House to assume this role would create a state of unchecked power for Congress—a system of governmental tyranny the Framers sought to avoid. Congress exceeded its prescribed authority under the Constitution.

Dissent (Rehnquist, J.)

Section 244(c)(2) of the INA is not severable. Severing the provision would allow for the attorney general to suspend deportations in cases in which Congress never stated that suspension is appropriate. The INA should not be expanded without a clear indication that Congress intended for its expansion. The legislative history of the INA demonstrates that Congress has consistently rejected the executive branch’s requests for complete discretion to suspend deportation and that Congress has repeatedly insisted on retaining control over the suspension process through either concurrent resolutions or the one-house veto.

Dissent (White, J.)

The majority’s decision has far-reaching implications for over 200 other statutory provisions in which Congress reserves the power of a “legislative veto.” The judiciary cannot prohibit legislative vetoes, because they are necessary tools in the passage of legislation in a modern government. Additionally, the absence of a constitutional provision providing for a legislative veto should not be dispositive, as precedent decisions have frequently interpreted the Constitution as being flexible in addressing modern circumstances. Congress already has legislative veto power over presidential actions; allowing it to exercise it in this way is not unconstitutional. The Constitution does permit Congress to delegate legislative power to the executive without fulfilling presentment and bicameralism concerns. These elements of the Constitution need not always be met in all legislative actions. A legislative veto is a constitutionally acceptable manner for Congress to override a decision made by the executive branch.

Rule of Law

There is no provision in the United States Constitution that authorizes the president to enact, amend, or repeal statutes.

Facts

The Line Item Veto Act (act) gave the president the power to “cancel in whole” three types of provisions signed into law. Specifically, the act allowed for the cancellation of (1) any dollar amount of discretionary budget authority, (2) any item of new direct spending, or (3) any limited tax benefit. The effect of the cancellation was the prevention of the item from having any legal force or effect. President Clinton (defendant) invoked the act to cancel a provision in the Balanced Budget Act of 1997 that would have allowed New York to avoid repaying funds received under Title XIX of the Social Security Act. Individuals who would have benefited under those provisions of the Social Security Act (plaintiffs) challenged the cancellation. The district court found that the act was unconstitutional. The case came before the United States Supreme Court.

Issue

Is the Line Item Veto Act constitutional?

Holding and Reasoning (Stevens, J.)

No. There is no provision in the United States Constitution that authorizes the president to enact, amend, or repeal statutes. Instead, Article I, § 7 of the Constitution requires that legislation originate in Congress and be presented to the president only upon passage in both the House and the Senate. The Constitution further provides that if the president does not approve the bill, he must return it to the house where it originated. This “return,” which is also known as a “veto”, is subject to being overridden by a two-thirds vote in each house of Congress. Here, the president’s cancellation power under the act differs significantly from his power to “return” a bill under the Constitution. For example, the statutory cancellation takes place after the bill becomes law, while the constitutional return of the bill takes place before the bill becomes law. Additionally, the statutory cancellation applies to only part of the bill, while the constitutional return applies to the entire bill. The act authorizes the president to effect the repeal of laws, for his own policy reasons, without regard for the procedures set forth in Article I, § 7 of the Constitution. This unilateral power to change the text of a duly enacted statute is unconstitutional. If Congress seeks to create a new procedure for creating laws, it must amend the Constitution. Accordingly, the act is unconstitutional, and the district court is affirmed.

Concurrence (Kennedy, J.)

Separation of powers is central to ensuring that each branch of government is able to vigorously assert its proper authority. The act increases the power of the president beyond what the Framers envisioned, thereby compromising the political liberty of American citizens.

Concurrence/Dissent (Scalia, J.)

This case presents an issue under the separation-of-powers doctrine, not the Presentment Clause. The question at the core of the case is whether the act transferred to the president a degree of political, lawmaking power that is traditionally retained by the legislative branch. There is no difference between Congress authorizing the president to cancel a spending item and Congress authorizing money to be spent on a particular item at the president’s discretion. Congress has been engaging in the latter behavior since the founding of this country.

Dissent (Breyer, J.)

The act does not violate any specific textual constitutional command. It also does not violate any implicit separations-of-powers principle. The Constitution authorizes Congress and the president to experiment with novel methods to improve government, such as the one contained in the act.

IN CLASS NOTES:

  • Horizontal Separation of Powers: Checks and Balances

    • Legislative

    • Executive

    • Judicial

  • Wars, Treaties, Foreign Affairs Powers:

    • Woods v. Cloyd W. Miller Co.

    • Missouri v. Holland:

      • Legal Isssue: Whether the Migratory Bird Treaty Act was an unconstitutional interference w/ rights reserved to teh states under the 10th amendment.

      • Underlying issue: Are Congress’s powers expanded when impliementing treaties?

      • Holding: UPHELD the act as constitutional.

      • Notes: Now under Commerce Clause substantial ecnomic effects.

    • Reid v. Coverts

    • Bond v. United States

    • Perez v. Brownell

    • Downes v. Bidwell

    • U.S. v. Vaello Maduro

What are War Powers and Where did they come from?:

  • Congress has the power declare war.

  • The power to make all necessary and proper laws in respect to that war. Art. 1 Sec. 8: To provide and maintain a navy.

  • Cessation does not always result in a revocation of Congress’s war powers authority, it also can encompass the return to domestic normalcy.

Treaty Power:

  • Art. II Sec. 2: The president “Shall have power by and with the advice and consent of the Senate to make Treaties provided 2.3 of the Senators present concur.

  • Art. VI: Cl. 2: This Constitution and the Laws of the US which shall be made in Pursuance thereof; and all Treaties made or which shall be made under the authority of the United States shall be the supreme law of the land.

    • Meaning that there are some additional powers that come with the making of those treaties, that are not explicitly stated.

    • The treaty power has more granted under it.

  • Art. 1 Sec. 8. Cl. 18: The Congress shall have the Power to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers and all other Powers vested by this Constitution in the government of the United States or in any Department or Officer thereof.

  • If the treaty is valid there can be no dispute about the validity of teh statute under Art. I Sec. 8 as a necessary and proper means to execute the powers of the Government.

  • If the treaty violated a provision of the Constitution then it is invalid.

  • The only question is whether it is forbidden by some invisible radiation from teh general terms of the 10th Amendment. We must consider what this country has become in deciding what the Amendment has reserved.

  • Here a national interest of very nearly the first magnitude is involved. It can only be protected by national action in convert with that of another power.

  • States will not regulate migratory birds on their own like air pollution (tragedy of the commons).

Executive Agreements:

  • Does Congress have the power to provide for military jurisdiction over civilian dependents of American servicemen overseas in accordance with an executive agreement permitting American military courts to exercise exclusive jurisdiction over such persons?

  • The Supreme Court held that American civilians outside of the territorial jurisdiction of the United States cannot be tried by U.S. military tribunal but instead retain the protection guaranteed by teh U.S. Constitution, in this case, trial by jury.

  • Therefore treaties and executive agreements cannot give power the right to abrogate.

  • The court clarified “the treaty was not inconsistent with any specific provision in the Constitution under Missouri v. Holland. Unlike that case, Reid v. Covert was trying violate a provision of the constitution.

  • However, “no agreement with a foreign nation can confer power ton Congress.” Cannot make an agreement to undermine the protections provided by the constitution.

Treaty Power:

  • Chemical Weapon Convention Implementation Act v. State Police Powers:

    • How far did the federal law go?

    • Holding: This CWCI cannot userp police powers.

    • CJ Roberts did not reach teh constitutional questions as to whether treaties could expand the power of Congress into the traditional purview of the states.

    • Scalia called into question whether the treaty power can expand Congress’s power visa vi the States.

There is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in teh law-making organ of the Nation.

Constitution outside of u.s:

  • The court held that the U.S. government is not always bound by every provision of the Constitution when it operates outside of the United States.

  • There may be a distinction between certain natural rights enforced in teh Constitution by prohibition against interference with them, and what may be termed artificial or remedia lrights which are peculiar to our own system of jurisprudence.

  • Therefore the Constitution as a whole does not apply to US territories such as Puerto Rico, American Samoa,

  • The Insular Case shave increasingly been questioned.

Congressional Power over Foreign Affairs:

  • Holding: “Congress did not violate the Constitution when it declined SSS benefits of Puerto Rico.

  • Gorsuch, concurring called for the US supreme court to overturn the Insular Cases.

U.S. Legal Framework:

  • Constitution and Constitutional Law (U.S./State/Tribal).

  • Treaties (Self-Executing/Non-self-executing) (U.S/Tribal)

  • Legislation: (Statutes at Large(Chronological), U.S. Code(Code based/Subject matter based)/ NDCC/ Tribal)

  • Administrative (Rule/ Regulations) (U.S. CFR/State/ Tribal).

  • Executive Orders (U.S./State/Tribal)

  • Executive Agreements (U.S.): Agreements with foreign nations.

  • Common Law: K (UCC), Torts, Property, Crim Law (MPC), Family Law (U.S./ State/ Tribal).

  • Court Rule of Civil/Criminal Procedure, Evidence (U.S./ State/Tribal).

When talking about congressional questions we are talking about the difference between legislation and administrative law.

Executive Branch: As the nation’s largest employer the federal government has over 2 million civilian employees

About 85% of federal employees work outside of the Washington D.C Area.

How do we have these checks and balances now? In comparison to then?

  • Society is so complex and congress may not be as equipped to answer every single question or minute detail.

Legislative Branch:

  • What is the Non-Delegation Doctrine? In theory, since the Constitution gives Congress all legislative powers, Congress may not constitutionally delegate its legislative power to another branch of government.

  • Very weak doctrine.

  • The Doctrine: Does not prevent Congress from seeking assistance, within proper limits, from the coordinate Branches.

  • Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.

  • The executive still must be told what to do. Very weak doctrine.

  • Weak Non-Delegation Doctrine: congress enabling the executive:

    • Even Weaker re: Presidential discretion in foreign affairs

    • The President alone has the power to speak or listen as a representative of the nation.

    • The court highlights “the very delicate, pleary and exclusive power of teh President as the sole organ of the federal government in the field of international relations a power which does not require as a basis for its exercise an act of Congress.

    • Curtis-Wright-So I’m right.

    • Also weak regarding presidential regulation of the military.

The Presentment Clauses: The requirement that all legislation be presented to the president before becoming law. When congress is taking an action that is going to have a legal effect, then you have to have bicameralism and presentment.

Bicameralism: No law could take effect without the concurrence of the majority of the Members of both Houses. The division of the Congress into two bodies.

When will a one-House veto trigger presentment and bicamerialism:

  • Contain matter which is property to be regarded as legislative in it character and effect

  • Alter the legal rights, duties, relations or status of person.

  • Require

  • 3rd requirement.

Line Item Veto: Does not exist at the federal level, but does exist in the state governments.

Under a Normal Veto:

  • The return to congress occurs before the bill becomes a law.

  • The statutory cancellation is of the entire bill,

  • Authorized by teh const.

Line Item Veto:

  • The return to Congress occurs after the bill becomes law.

  • Statutory cancellation is only part of the bill.

  • NOT authorized by Constitution.

Note: Under Train v. City of NY:

  • The president cannot refuse to spend appropriated funds.

  • However, Congress can give the President discretion to spend or not spend the appropriated funds.

  • But if congress says that you have to spend certain amounts of monies.

  • (Bar Exam Question!!!)