Separation of Powers and Delegations of Authority to Cancel Statutes in the Line Item Veto Act and the Rules Enabling Act

George Washington Law Review

Volumn 68, Issue 3, 2000, Pages 395-445

  Kelleher, Leslie M ^a  

^a NONE

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EID: 0034563258     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (433)

1. E. Donald Elliott, Why Our Separation of Powers Jurisprudence Is So Abysmal, 57 GEO. WASH. L. REV. 506, 506 (1989).
2. 118 S. Ct. 2091 (1998).
3. 2 U.S.C. §§ 691-692 (1994 & Supp. IV 1999).
4. See, e.g., Michael G. Locklar, Comment, Is the 1996 Line-Item Veto Constitutional?, 34 Hous. L. REV. 1161, 1194 (1997) (concluding that the Act is constitutional because it "meets the bicameralism, presentment, and veto provisions of the Constitution, and does not violate separation of powers"); H. Jefferson Powell & Jed Rubenfeld, Dialogue, Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers, 47 DUKE L.J. 1171 (1998) (convincing a confident supporter of the majority's opinion in Clinton that the Act is constitutional).
5. See, e.g., Michael G. Locklar, Comment, Is the 1996 Line-Item Veto Constitutional?, 34 Hous. L. REV. 1161, 1194 (1997) (concluding that the Act is constitutional because it "meets the bicameralism, presentment, and veto provisions of the Constitution, and does not violate separation of powers"); H. Jefferson Powell & Jed Rubenfeld, Dialogue, Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers, 47 DUKE L.J. 1171 (1998) (convincing a confident supporter of the majority's opinion in Clinton that the Act is constitutional).
6. See, e.g., Lawrence Lessig, Lessons from a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1663 (1997) (urging that giving the President a fundamental power of Congress is an unconstitutional delegation); Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 Nw. U. L. REV. 771, 773 (1997) (arguing the Act is unconstitutional because it abridges the executive's veto power and violates the nondelegation doctrine); see also Robert Destro, Whom Do You Trust: Judicial Independence, the Power of the Purse & the Line Item Veto, 44 FED. LAW. 26, 27 (1997) (arguing that the LIVA presents separation of powers problems by placing the judiciary's budget in the control of the executive branch, which is the largest litigant in federal courts); Richard S. Arnold, Money, or the Relations of the Judicial Branch with the Other Two Branches, Legislative and Executive, 40 ST. Louis U. L.J. 19, 27-28 (1996) (making the same argument).
7. See, e.g., Lawrence Lessig, Lessons from a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1663 (1997) (urging that giving the President a fundamental power of Congress is an unconstitutional delegation); Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 Nw. U. L. REV. 771, 773 (1997) (arguing the Act is unconstitutional because it abridges the executive's veto power and violates the nondelegation doctrine); see also Robert Destro, Whom Do You Trust: Judicial Independence, the Power of the Purse & the Line Item Veto, 44 FED. LAW. 26, 27 (1997) (arguing that the LIVA presents separation of powers problems by placing the judiciary's budget in the control of the executive branch, which is the largest litigant in federal courts); Richard S. Arnold, Money, or the Relations of the Judicial Branch with the Other Two Branches, Legislative and Executive, 40 ST. Louis U. L.J. 19, 27-28 (1996) (making the same argument).
8. See, e.g., Lawrence Lessig, Lessons from a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1663 (1997) (urging that giving the President a fundamental power of Congress is an unconstitutional delegation); Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 Nw. U. L. REV. 771, 773 (1997) (arguing the Act is unconstitutional because it abridges the executive's veto power and violates the nondelegation doctrine); see also Robert Destro, Whom Do You Trust: Judicial Independence, the Power of the Purse & the Line Item Veto, 44 FED. LAW. 26, 27 (1997) (arguing that the LIVA presents separation of powers problems by placing the judiciary's budget in the control of the executive branch, which is the largest litigant in federal courts); Richard S. Arnold, Money, or the Relations of the Judicial Branch with the Other Two Branches, Legislative and Executive, 40 ST. Louis U. L.J. 19, 27-28 (1996) (making the same argument).
9. See, e.g., Lawrence Lessig, Lessons from a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1663 (1997) (urging that giving the President a fundamental power of Congress is an unconstitutional delegation); Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 Nw. U. L. REV. 771, 773 (1997) (arguing the Act is unconstitutional because it abridges the executive's veto power and violates the nondelegation doctrine); see also Robert Destro, Whom Do You Trust: Judicial Independence, the Power of the Purse & the Line Item Veto, 44 FED. LAW. 26, 27 (1997) (arguing that the LIVA presents separation of powers problems by placing the judiciary's budget in the control of the executive branch, which is the largest litigant in federal courts); Richard S. Arnold, Money, or the Relations of the Judicial Branch with the Other Two Branches, Legislative and Executive, 40 ST. Louis U. L.J. 19, 27-28 (1996) (making the same argument).
10. 521 U.S. 811 (1997).
11. Id. at 838 (Stevens, J., dissenting).
12. According to the conference report, the Act was in response to public demand to curb "run-away federal spending and a rising national debt" and was intended to "ensure greater fiscal accountability in Washington." H.R. CONF. REP. No. 104-491, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 892, 892. President Clinton called the Court's decision "'a defeat for all Americans,' saying it will deprive presidents of 'a valuable tool for eliminating waste in the federal government.'" Edward Felsenthal, Supreme Court Invalidates the Line-Item Veto, WALL ST. J., June 26, 1998, at A3.
13. Clinton v. City of New York, 118 S. Ct. 2091, 2107 (1998) ("We do not lightly conclude that [the Act is] unauthorized by the Constitution. We have, however, . . . concluded that our duty is clear.").
14. See, e.g., J. Gregory Sidak, Essay, The Line-Item Veto Amendment, 80 CORNELL L. REV. 1498 (1995). Writing just after the introduction of the LIVA in Congress, Professor Sidak, a longtime proponent of the theory that the President has inherent item veto authority, argued that a constitutional amendment should be used to grant the President the item veto because if the Supreme Court found that the Act granted the President a new power, it would also find it invalid. See id. at 1500-01.
15. 141 CONG. REC. H3505 (1995) (statement of Rep. Deal). Experts testifying at congressional hearings were divided over the constitutionality and necessity of legislation authorizing a line item veto. See, e.g., The Line-Item Veto: A Constitutional Approach: Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate Comm. on the Judiciary, 104th Cong. (1995); see also Line Item Veto: The President's Constitutional Authority: Hearings on S. Res. 195 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 103rd Cong. (1994) (considering whether the President has inherent constitutional authority to exercise line item veto).
16. 141 CONG. REC. H3505 (1995) (statement of Rep. Deal). Experts testifying at congressional hearings were divided over the constitutionality and necessity of legislation authorizing a line item veto. See, e.g., The Line-Item Veto: A Constitutional Approach: Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate Comm. on the Judiciary, 104th Cong. (1995); see also Line Item Veto: The President's Constitutional Authority: Hearings on S. Res. 195 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 103rd Cong. (1994) (considering whether the President has inherent constitutional authority to exercise line item veto).
17. The challenge by six members of Congress was made pursuant to the standing and expedited review provisions of the Act. See 2 U.S.C. § 692(a)-(c) (1994) (granting standing to any member of Congress at any time, or any aggrieved individual, to challenge the constitutionality of the Act, and providing for an expedited review by the Supreme Court of any district court decision concerning the Act's constitutionality).
18. Raines v. Byrd, 521 U.S. 811, 820-21, 829 (stating that the Court "must put aside the natural urge to proceed directly to the merits of this important dispute and to 'settle' it for the sake of convenience and efficiency," and noting that the ruling does not "foreclose [ ] the Act from constitutional challenge"). For discussions of the implications of the Raines decision for the doctrine of Article III standing, see Neal Devins & Michael A. Fitts, Essay, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court's Attempt to Control Constitutional Confrontations, 86 GEO. L.J. 351 (1997); Note, Standing in the Way of Separation of Powers: The Consequences of Raines v. Byrd, 112 HARV. L. REV. 1741 (1999).
19. Raines v. Byrd, 521 U.S. 811, 820-21, 829 (stating that the Court "must put aside the natural urge to proceed directly to the merits of this important dispute and to 'settle' it for the sake of convenience and efficiency," and noting that the ruling does not "foreclose [ ] the Act from constitutional challenge"). For discussions of the implications of the Raines decision for the doctrine of Article III standing, see Neal Devins & Michael A. Fitts, Essay, The Triumph of Timing: Raines v. Byrd and the Modern Supreme Court's Attempt to Control Constitutional Confrontations, 86 GEO. L.J. 351 (1997); Note, Standing in the Way of Separation of Powers: The Consequences of Raines v. Byrd, 112 HARV. L. REV. 1741 (1999).
20. See Clinton, 118 S. Ct. at 2091.
21. 2 U.S.C. § 691b(a).
22. See Clinton, 118 S. Ct. at 2102-03.
23. Id. at 2107.
24. Id. at 2104 (citing INS v. Chadha, 462 U.S. 919, 951 (1983)).
25. Id. at 2108.
26. See id. at 2108 ("[W]e find it unnecessary to consider the District Court's alternative holding that the Act 'impermissibly disrupts the balance of powers among the three branches of government.'" (citation omitted)).
27. U.S. CONST. art. I, § 7, cl. 2.
28. 462 U.S. 919, 951 (1983).
29. The literature on the Chadha decision is voluminous and generally critical. See, e.g., Elliott, supra note 1, at 515-16 (criticizing the Chadha Court not only for making "bad narrow, legalistic arguments," but also for having "inappropriately adopted a narrow, legalistic approach to an important question of separation of powers law"); Peter L. Strauss, Comment, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 DUKE L.J. 789, 817-19 (criticizing the decision for being too far-reaching); Laurence H. Tribe, The Legislative Veto Decision: A Law by Any Other Name?, 21 HARV. J. ON LEGIS. 1, 8 (1984) (challenging the majority's premise that the one-house veto was a legislative action); Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 WM. & MARY L. REV. 301, 314 (1989) (criticizing the Chadha Court for not giving "more focused attention to separation of powers questions in the legislative veto context").
30. The literature on the Chadha decision is voluminous and generally critical. See, e.g., Elliott, supra note 1, at 515-16 (criticizing the Chadha Court not only for making "bad narrow, legalistic arguments," but also for having "inappropriately adopted a narrow, legalistic approach to an important question of separation of powers law"); Peter L. Strauss, Comment, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 DUKE L.J. 789, 817-19 (criticizing the decision for being too far-reaching); Laurence H. Tribe, The Legislative Veto Decision: A Law by Any Other Name?, 21 HARV. J. ON LEGIS. 1, 8 (1984) (challenging the majority's premise that the one-house veto was a legislative action); Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 WM. & MARY L. REV. 301, 314 (1989) (criticizing the Chadha Court for not giving "more focused attention to separation of powers questions in the legislative veto context").
31. The literature on the Chadha decision is voluminous and generally critical. See, e.g., Elliott, supra note 1, at 515-16 (criticizing the Chadha Court not only for making "bad narrow, legalistic arguments," but also for having "inappropriately adopted a narrow, legalistic approach to an important question of separation of powers law"); Peter L. Strauss, Comment, Was There a Baby in the Bathwater? A Comment on the Supreme Court's Legislative Veto Decision, 1983 DUKE L.J. 789, 817-19 (criticizing the decision for being too far-reaching); Laurence H. Tribe, The Legislative Veto Decision: A Law by Any Other Name?, 21 HARV. J. ON LEGIS. 1, 8 (1984) (challenging the majority's premise that the one-house veto was a legislative action); Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 WM. & MARY L. REV. 301, 314 (1989) (criticizing the Chadha Court for not giving "more focused attention to separation of powers questions in the legislative veto context").
32. The commentators have wasted no time sharpening their pencils. See, e.g., Elizabeth Garrett, Accountability and Restraint: The Federal Budget Process and the Line Item Veto Act, 20 CARDOZO L. REV. 871, 872 (1999) (criticizing the majority opinion for misunderstanding the LIVA and misapplying constitutional law); The Supreme Court, 1997 Term-Leading Cases, 112 HARV. L. REV. 122, 127 (1998) (criticizing the decision for reliance on the Presentment Clause and Chadha, and arguing that the Act should have been held valid under the delegation doctrine).
33. The commentators have wasted no time sharpening their pencils. See, e.g., Elizabeth Garrett, Accountability and Restraint: The Federal Budget Process and the Line Item Veto Act, 20 CARDOZO L. REV. 871, 872 (1999) (criticizing the majority opinion for misunderstanding the LIVA and misapplying constitutional law); The Supreme Court, 1997 Term-Leading Cases, 112 HARV. L. REV. 122, 127 (1998) (criticizing the decision for reliance on the Presentment Clause and Chadha, and arguing that the Act should have been held valid under the delegation doctrine).
34. See David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947 (1999). See generally Symposium, The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Political Perspectives, 20 CARDOZO L. REV. 730 (1999).
35. See David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947 (1999). See generally Symposium, The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Political Perspectives, 20 CARDOZO L. REV. 730 (1999).
36. Judicial Improvements and Access to Justice Act § 401(a), 28 U.S.C. § 2072(b) (1994).
37. Id. § 2072(a).
38. Id. § 2072(b).
39. Id.
40. 2 U.S.C. §§ 691(a), 691e(4) (1994 & Supp. IV 1999) (purporting to give the President the authority to "cancel" certain provisions of law and specifying that a cancellation would "rescind" the provision or prevent it "from having legal force or effect").
41. 28 U.S.C. § 2072(b) ("All laws in conflict with such rules shall be of no further force or effect after such rules take effect.").
42. Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 GEO. WASH. L. REV. 1, 42 (1998). Professor Prakash makes the quoted comment to demonstrate how poorly reasoned the Clinton decision is, but he makes no reference to the serious debate about, and provides no analysis concerning, the validity of the supersession clause.
43. See Appellant's Brief at 40, Clinton v. City of New York, 118 S. Ct. 2091 (1998) (No. 97-1374) (citing Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941), and Henderson v. United States, 517 U.S. 654, 663-64 (1996)).
44. See infra Part V.
45. Clinton, 118 S. Ct. at 2107 n.40.
46. See id. at 2106-07.
47. See id. at 2107 n.40.
48. Id.
49. See id. at 2106 (noting that under the LIVA, "whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment").
50. See infra note 312 and accompanying text.
51. See Leslie M. Kelleher, Taking "Substantive Rights" (in the Rules Enabling Act) More Seriously, 74 NOTRE DAME L. REV. 47, 87-88 (1998).
52. See infra notes 311-12 and accompanying text.
53. See infra note 269 and accompanying text.
54. See U.S. CONST. art. I, § 7, cl. 2. The paragraph provides: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become 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. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Id.
55. Id.
56. A bill may also become law without the President's signature if he fails to return it to Congress within ten days. See id. If Congress adjourns within that ten-day period, however, the bill will not become a law. See id. This is often referred to as a "pocket veto."
57. See id.
58. The term "veto" does not appear in the Constitution, but is "used to describe the President's power under Art. I, § 7, of the Constitution." INS v. Chadha, 462 U.S. 919, 925 n.2 (1983) (citing BLACK'S LAW DICTIONARY 1403 (5th ed. 1979)).
59. See U.S. CONST. art. 1, § 7, cl. 2.
60. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-13, at 265 (2d ed. 1988) ("[T]he President may wield his veto on the legislative product only in the form in which Congress chooses to send it to the White House: be the bill small or large, its concerns focused or diffuse, its form particular or omnibus, the President must accept or reject the entire thing, swallowing the bitter with the sweet.").
61. "Continuing Resolutions" have expanded to such a dramatic degree that they are sometimes effectively an all-in-one budget bill. See L. Gordon Crovitz, The Line-Item Veto: The Best Response When Congress Passes One Spending "Bill" a Year, 18 PEPP. L. REV. 43, 43 (1990).
62. "Pork-barrel" refers to spending items inserted in the federal budget to "serve only particular local interests and which are made by federal representatives to purchase local support." Marci A. Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO L. REV. 807, 819 n.71 (1999); see also Elizabeth Garrett, A Fiscal Constitution with Supermajority Voting Rules, 40 WM. & MARY L. REV. 471, 484 (1999) (noting "the absence of any consensus definition of the public interest or of purely private interest spending. 'Pork' is in the eye of the beholder; a private interest bill is often one that the commentator believes to be bad policy.").
63. "Pork-barrel" refers to spending items inserted in the federal budget to "serve only particular local interests and which are made by federal representatives to purchase local support." Marci A. Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO L. REV. 807, 819 n.71 (1999); see also Elizabeth Garrett, A Fiscal Constitution with Supermajority Voting Rules, 40 WM. & MARY L. REV. 471, 484 (1999) (noting "the absence of any consensus definition of the public interest or of purely private interest spending. 'Pork' is in the eye of the beholder; a private interest bill is often one that the commentator believes to be bad policy.").
64. See Russell M. Ross & Fred Schwengel, An Item Veto for the President?, 12 PRESIDENTIAL STUD. Q. 66, 77 (1982) ("When appropriation bills are rushed through Congress in the closing days, and perhaps hours, of the legislative session, as is often the case, the President has, for all practical purposes, no choice at all."). Commentators have argued that Congress's practice of passing last-minute "continuing resolutions" is intended to make the bill effectively veto proof: "Congress then passes the resolution just as the government's spending authority expires, so that the resolution cannot be vetoed without closing down the government." Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. REV. 735, 737 n.3 (1993) (citing Neal E. Devins, Appropriations Redux: A Critical Look at the Fiscal Year 1988 Continuing Resolution, 1988 DUKE L.J. 389, 392-93).
65. See Russell M. Ross & Fred Schwengel, An Item Veto for the President?, 12 PRESIDENTIAL STUD. Q. 66, 77 (1982) ("When appropriation bills are rushed through Congress in the closing days, and perhaps hours, of the legislative session, as is often the case, the President has, for all practical purposes, no choice at all."). Commentators have argued that Congress's practice of passing last-minute "continuing resolutions" is intended to make the bill effectively veto proof: "Congress then passes the resolution just as the government's spending authority expires, so that the resolution cannot be vetoed without closing down the government." Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. REV. 735, 737 n.3 (1993) (citing Neal E. Devins, Appropriations Redux: A Critical Look at the Fiscal Year 1988 Continuing Resolution, 1988 DUKE L.J. 389, 392-93).
66. See Russell M. Ross & Fred Schwengel, An Item Veto for the President?, 12 PRESIDENTIAL STUD. Q. 66, 77 (1982) ("When appropriation bills are rushed through Congress in the closing days, and perhaps hours, of the legislative session, as is often the case, the President has, for all practical purposes, no choice at all."). Commentators have argued that Congress's practice of passing last-minute "continuing resolutions" is intended to make the bill effectively veto proof: "Congress then passes the resolution just as the government's spending authority expires, so that the resolution cannot be vetoed without closing down the government." Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. REV. 735, 737 n.3 (1993) (citing Neal E. Devins, Appropriations Redux: A Critical Look at the Fiscal Year 1988 Continuing Resolution, 1988 DUKE L.J. 389, 392-93).
67. See, e.g., David Rogers, White House, GOP Reach Accord to End Government Shutdown, WALL ST. J., Nov. 20, 1995, at A2 (reporting the results of a survey that showed more people blamed the Republican Congress for the November 1995 government shutdown than blamed President Clinton).
68. See Locklar, supra note 4, at 1164 ("[W]ith a growth in federal debt in the 1980's and 1990's, congressional interest in the line-item veto once again increased." (citations omitted)).
69. The "item veto" is often mistakenly referred to as the "line-item veto - federal appropriations bills are not itemized line by line." ROBERT J. SPITZER, THE PRESIDENTIAL VETO: TOUCHSTONE OF THE AMERICAN PRESIDENCY 122 (1988).
70. See, e.g., Judith A. Best, The Item Veto: Would the Founders Approve?, 14 PRESIDENTIAL STUD. Q. 183, 187-88 (1984) ("It is reasonable to assert that the Founders would not find the item veto to be a dangerous innovation but rather a rehabilitation of an original and essential check and balance."); Crovitz, supra note 51, at 45-47 (arguing that Clause 3 of Article 1, Section 7 was added to ensure that Congress did not call a bill by another name simply to circumvent the presidential veto and is therefore evidence of the framer's intent to permit what we now call a presidential item veto); Diane-Michele Krasnow, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV J.L. & PUB. POL'Y 583-96 (1991) (arguing that the Framers were familiar with item vetoes in state constitutions and intended the President to have a similar power); J. Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe and Kurland, 84 Nw. U. L. REV. 437, 467 (1990) (arguing that "the Constitution envisions some limit to the size and scope of a bill, for as Congress bundles more and more proposed laws into a single 'bill,' it diminishes the President's . . . veto power to a degree that we think must be inconsistent with the constitutional order contemplated by the framers"). If there were no limit, "Congress could take an entire session's work (including appropriations legislation) and package it in a single piece of omnibus legislation." Id. See also Motion of John S. Baker, Jr. to File Out of Time a Brief Amicus Curiae in Support of the Appellants, William J. Clinton, et al. at 9, Clinton v. New York, 118 S. Ct. 2091 (1998) (No. 97-1374) (arguing that "[i]n effect, although not formally, the Line Item Veto Act allows the President partially to un-bundle what the Framers would not have considered a proper 'bill'").
71. See, e.g., Judith A. Best, The Item Veto: Would the Founders Approve?, 14 PRESIDENTIAL STUD. Q. 183, 187-88 (1984) ("It is reasonable to assert that the Founders would not find the item veto to be a dangerous innovation but rather a rehabilitation of an original and essential check and balance."); Crovitz, supra note 51, at 45-47 (arguing that Clause 3 of Article 1, Section 7 was added to ensure that Congress did not call a bill by another name simply to circumvent the presidential veto and is therefore evidence of the framer's intent to permit what we now call a presidential item veto); Diane-Michele Krasnow, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV J.L. & PUB. POL'Y 583-96 (1991) (arguing that the Framers were familiar with item vetoes in state constitutions and intended the President to have a similar power); J. Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe and Kurland, 84 Nw. U. L. REV. 437, 467 (1990) (arguing that "the Constitution envisions some limit to the size and scope of a bill, for as Congress bundles more and more proposed laws into a single 'bill,' it diminishes the President's . . . veto power to a degree that we think must be inconsistent with the constitutional order contemplated by the framers"). If there were no limit, "Congress could take an entire session's work (including appropriations legislation) and package it in a single piece of omnibus legislation." Id. See also Motion of John S. Baker, Jr. to File Out of Time a Brief Amicus Curiae in Support of the Appellants, William J. Clinton, et al. at 9, Clinton v. New York, 118 S. Ct. 2091 (1998) (No. 97-1374) (arguing that "[i]n effect, although not formally, the Line Item Veto Act allows the President partially to un-bundle what the Framers would not have considered a proper 'bill'").
72. See, e.g., Judith A. Best, The Item Veto: Would the Founders Approve?, 14 PRESIDENTIAL STUD. Q. 183, 187-88 (1984) ("It is reasonable to assert that the Founders would not find the item veto to be a dangerous innovation but rather a rehabilitation of an original and essential check and balance."); Crovitz, supra note 51, at 45-47 (arguing that Clause 3 of Article 1, Section 7 was added to ensure that Congress did not call a bill by another name simply to circumvent the presidential veto and is therefore evidence of the framer's intent to permit what we now call a presidential item veto); Diane-Michele Krasnow, The Imbalance of Power and the Presidential Veto: A Case for the Item Veto, 14 HARV J.L. & PUB. POL'Y 583-96 (1991) (arguing that the Framers were familiar with item vetoes in state constitutions and intended the President to have a similar power); J. Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe and Kurland, 84 Nw. U. L. REV. 437, 467 (1990) (arguing that "the Constitution envisions some limit to the size and scope of a bill, for as Congress bundles more and more proposed laws into a single 'bill,' it diminishes the President's . . . veto power to a degree that we think must be inconsistent with the constitutional order contemplated by the framers"). If there were no limit, "Congress could take an entire session's work (including appropriations legislation) and package it in a single piece of omnibus legislation." Id. See also Motion of John S. Baker, Jr. to File Out of Time a Brief Amicus Curiae in Support of the Appellants, William J. Clinton, et al. at 9, Clinton v. New York, 118 S. Ct. 2091 (1998) (No. 97-1374) (arguing that "[i]n effect, although not formally, the Line Item Veto Act allows the President partially to un-bundle what the Framers would not have considered a proper 'bill'").
73. Paul R.Q. Wolfson, Is a Presidential Item Veto Constitutional?, 96 YALE L.J. 838, 839 (1987).
74. See, e.g., Michael J. Gerhardt, The Bottom Line on the Line-Item Veto Act of 1996, 6 CORNELL J.L. & PUB. POL'Y 233, 238 (1997) ("[P]ork barrel appropriations . . . are just unattractive examples of legislating for diverse interests, which is the very stuff of representative government. Apportioning the public fisc in a large and diverse nation requires degrees of coordination and compromise that the framers left to the initial discretion of Congress" and can therefore only be undone pursuant to Article I.").
75. See Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1838 (1996) (arguing that a line item veto is contrary to the Framers' values that gave rise to separation of powers, noting that one legislative measure might become law "even though it might never have commanded a majority standing alone, absent legislative bargaining"); see also Gerhardt, supra note 59, at 240 (arguing that "the [LIVA] establishes an uneven playing field for the President and Congress on budgetary matters. In so doing, it profoundly alters the balance of power set forth in the Constitution.").
76. See generally Locklar, supra note 4, at 1163-66.
77. For a discussion of the House and Senate bills and the compromise that led up to the LIVA, see generally Gordon T. Butler, The Line Item Veto and the Tax Legislative Process: A Futile Effort at Deficit Reduction, but a Step Toward True Tax Integrity, 49 HASTINGS L.J. 1, 21-31 (1997).
78. The Court, however, did seem to reject as unconstitutional the possibility of a presidential item veto, citing statements by George Washington that he was bound to either "'approve all the parts of a Bill, or reject it in toto.'" Clinton v. City of New York, 118 S. Ct. 2091, 2104 (1998) (citing 33 WRITINGS OF GEORGE WASHINGTON 96 (J. Fitzpatrick ed., 1940)); see also id. at 2109 ('Kennedy, J., concurring) ("The law is the functional equivalent of a line item veto and enhances the President's power beyond what the Framers would have endorsed."); id. at 2118 (Scalia, J., dissenting) ("The President's action [that the LIVA] authorizes in fact is not a line-item veto and thus does not offend Art. I, § 7."). The Court also emphasized that for a bill to become law, both chambers must approve precisely the same text and the President must sign it into law, and "[i]f one paragraph of that text ha[s] been omitted at any one of those three stages, [the law has not] been validly enacted." Id. at 2108. Thus, the Court also seems to have precluded the possibility of a law that would permit separate enrollment of items of spending by the clerk, an approach the Senate took but later abandoned. But see Garrett, supra note 24, at 913 (stating that a separate enrollment procedure is "almost certainly constitutional," but offering no real support for that conclusion).
79. See 2 U.S.C. §691 (a) (1994 & Supp. II 1997).
80. id. A bill had to be signed by the President in order for him to exercise the cancellation authority; it could not have become law by a congressional override of the President's veto. Professor Michael Rappaport has made a rather interesting argument that this imposed an unconstitutional burden on the presidential veto. See Rappaport, supra note 53, at 773 ("Veto burdens enable Congress to exercise additional leverage over the President's decision whether to veto a bill."). This issue was not addressed in the Clinton decision.
81. See 2 U.S.C. § 691(a)(B).
82. Id. § 691(a)(A).
83. Id. § 691(a); see also id. § 691e (definitions).
84. Id. § 691e(4)(A).
85. Id. § 691e(4)(B)-(C).
86. W. § 691b(a); see also id. § 691e(6).
87. See id. § 691d.
88. See id. § 691(c).
89. See U.S. CONST. art. I, § 7, cl. 2. See Clinton v. City of New York, 118 S. Ct. 2901, 2102 (1998).
90. See 2 U.S.C. § 691c(a).
91. See id. § 691c(a)-(b). "The lockbox procedure ensures that savings resulting from can-cellations are used to reduce the deficit, rather than to offset deficit increases arising from other laws." Clinton, 118 S. Ct. at 2104 n.31 ("[T]he 'pay-as-you-go' cap does not change upon cancel-lation because the cancelled item is not treated as cancelled."); see also id. at 2122-23 (Breyer, J., dissenting) (explaining that the 'lockbox' feature ensures that the pro rata reductions made under the Gramm-Rudman-Hollings Act "will take place just as if the [cancelled] item had not been canceled"); Butler, supra note 62, at 27-28.
92. Pub. L. No. 105-33, § 4722(c), 111 Stat. 251, 515. This provision would have relieved New York State of as much as $2.6 billion in liability to the federal government for overpayments of federal subsidies for Medicare. See City of New York v. Clinton, 985 F. Supp. 168, 172 (D.D.C. 1998).
93. Pub. L. No. 105-34, § 968, 111 Stat. 788, 895-96. This provision amended the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of capital gain on stock transfers to eligible farmers' cooperatives, in much the same way as recognition of the capital gain from a sale to an employee stock ownership plan or certain worker-owned cooperatives could be deferred. See I.R.C. § 1042(b)(1) (1994).
94. See Clinton, 118 S. Ct. at 2097 n.9.
95. See City of New York v. Clinton, 985 F. Supp. at 182.
96. See 2 U.S.C. § 692(b)-(c); Clinton, 118 S. Ct. at 2095.
97. See Clinton, 118 S. Ct. at 2098-102.
98. See id. at 2103-04 (citing INS v. Chadha, 462 U.S. 919, 954 (1983)). The Court left open the question whether the LIVA provisions relating to discretionary budget authority are severable from those at issue in the Clinton case, but did note that there had been a severability clause in the Senate bill, which was dropped without explanation in conference; see id. at 2108 n.43. See also Garrett, supra note 24, at 873 (arguing that the "LIVA may still be effective as applied to discretionary spending"). Shortly after the Clinton decision, the White House announced that it was considering whether the President could use the cancellation power for items of discretionary budget authority. See id. at 873 n.12 (citing Mark Felsenthal, Clinton Seeks 'Constitutional Way'to Continue Use of Line-Item Veto, Daily Tax Rep. (BNA) No. 124, at G-1 (June 29, 1998)). As of this writing, he has not yet attempted to do so.
99. See Clinton, 118 S. Ct. at 2104. See supra note 75 and accompanying text.
100. See Clinton, 118 S. Ct. at 2104.
101. Id. at 2105. See also Appellant's Brief at 38, Clinton (No. 97-1374).
102. 143 U.S. 649 (1892). Field was one of only two delegation cases decided by the Court in the nation's first century. In both cases, Field and Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813), the Court upheld delegations to the President. See DAAN BRAVEMAN ET AL., CONSTITUTIONAL LAW: STRUCTURE AND RIGHTS IN OUR FEDERAL SYSTEM § 2.03[B], at 76-77 (3d ed. 1996). As the Court noted in Clinton, Field was concerned with foreign relations, an area in which the President has inherent constitutional authority. See Clinton, 118 S. Ct. at 2106.
103. 143 U.S. 649 (1892). Field was one of only two delegation cases decided by the Court in the nation's first century. In both cases, Field and Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813), the Court upheld delegations to the President. See DAAN BRAVEMAN ET AL., CONSTITUTIONAL LAW: STRUCTURE AND RIGHTS IN OUR FEDERAL SYSTEM § 2.03[B], at 76-77 (3d ed. 1996). As the Court noted in Clinton, Field was concerned with foreign relations, an area in which the President has inherent constitutional authority. See Clinton, 118 S. Ct. at 2106.
104. See Clinton, 118 S.Ct. at 2105.
105. See id. at 2105-06.
106. Clinton, 118 S. Ct. at 2105.
107. See id.
108. See id. at 2106.
109. Id. (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
110. See Appellant's Brief at 42-44, Clinton (No. 97-1734).
111. Clinton, 118 S. Ct. at 2107.
112. Id. at 2108.
113. Id. (citation omitted).
114. See id. at 2115 (Scalia, J., dissenting).
115. Id. at 2116 (Scalia, J., dissenting).
116. See id. (Scalia, J., dissenting).
117. Id. (Scalia, J., dissenting).
118. See id. (Scalia, J., dissenting).
119. See id. (Scalia, J., dissenting).
120. Id. at 2116-17 (Scalia, J., dissenting). Justice Scalia explained that the President has no inherent constitutional authority to impound funds appropriated by Congress, but noted "that Congress may confer discretion upon the executive to withhold appropriated funds, even funds appropriated for a specific purpose." Id. at 2117 (citing Train v. City of New York, 120 U.S. 35, 44-47 (1975)).
121. Id. at 2116 (Scalia, J., dissenting).
122. See id. at 2118 (Breyer, J., dissenting).
123. See id. (Breyer, J., dissenting).
124. See id. at 2122 (Breyer, J., dissenting).
125. Id. at 2123 (Breyer, J., dissenting). Justices Scalia and O'Connor joined this part of Justice Breyer's opinion.
126. See id. (Breyer, J., dissenting).
127. See id. at 2124-25. For a discussion of formalist and functionalist approaches to separation of powers issues, see infra Part III.B.
128. See Clinton, 118 S. Ct. at 2124 (Breyer, J., dissenting).
129. See id. at 2124-25, 2127 (Breyer, J., dissenting).
130. See id. at 2125, 2128 (Breyer, J., dissenting).
131. See infra Part V.
132. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 434-35 (1987). In a well-known passage, James Madison argued that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." THE FEDERALIST No. 47, at 300 (James Madison) (G.P. Putnam's Sons ed., 1888). Madison, however, rejected the notion that a pure or complete separation of powers was necessary, or wise, arguing that only "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted." Id. at 302.
133. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 434-35 (1987). In a well-known passage, James Madison argued that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." THE FEDERALIST No. 47, at 300 (James Madison) (G.P. Putnam's Sons ed., 1888). Madison, however, rejected the notion that a pure or complete separation of powers was necessary, or wise, arguing that only "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted." Id. at 302.
134. See William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719, 722 (1984). Therefore: The celebrated statement of Justice Brandeis that "[t]he doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is only partially correct. . . . [T]he convention of 1787 was significantly motivated by the need to promote efficiency in the operations of government, and, insofar as it acted to preclude arbitrary power, it was arbitrary legislative power with which it was principally concerned. Dean Alfange, Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990) (citing Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting), and Louis Fisher, The Efficiency Side of Separated Powers, 5 J. AM. STUD. 113 (1971)); cf. Erwin Chemerinsky, A Paradox Without a Principle: A Comment on the Burger Court's Jurisprudence in Separation of Powers Cases, 60 S. CAL. L. REV. 1083, 1099 (1987) ("[T]here is no doubt that the Framers distrusted executive power at least as much, if not more, than they distrusted the legislature. . . . [T]he Framers were guided by the 'unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man.'" (citing Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 33 (1972))). An elegant discussion of the Framers' purposes in the constitutional distribution of national powers can be found in Sunstein, supra note 116, at 430-37.
135. See William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719, 722 (1984). Therefore: The celebrated statement of Justice Brandeis that "[t]he doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is only partially correct. . . . [T]he convention of 1787 was significantly motivated by the need to promote efficiency in the operations of government, and, insofar as it acted to preclude arbitrary power, it was arbitrary legislative power with which it was principally concerned. Dean Alfange, Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990) (citing Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting), and Louis Fisher, The Efficiency Side of Separated Powers, 5 J. AM. STUD. 113 (1971)); cf. Erwin Chemerinsky, A Paradox Without a Principle: A Comment on the Burger Court's Jurisprudence in Separation of Powers Cases, 60 S. CAL. L. REV. 1083, 1099 (1987) ("[T]here is no doubt that the Framers distrusted executive power at least as much, if not more, than they distrusted the legislature. . . . [T]he Framers were guided by the 'unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man.'" (citing Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 33 (1972))). An elegant discussion of the Framers' purposes in the constitutional distribution of national powers can be found in Sunstein, supra note 116, at 430-37.
136. See William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719, 722 (1984). Therefore: The celebrated statement of Justice Brandeis that "[t]he doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is only partially correct. . . . [T]he convention of 1787 was significantly motivated by the need to promote efficiency in the operations of government, and, insofar as it acted to preclude arbitrary power, it was arbitrary legislative power with which it was principally concerned. Dean Alfange, Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990) (citing Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting), and Louis Fisher, The Efficiency Side of Separated Powers, 5 J. AM. STUD. 113 (1971)); cf. Erwin Chemerinsky, A Paradox Without a Principle: A Comment on the Burger Court's Jurisprudence in Separation of Powers Cases, 60 S. CAL. L. REV. 1083, 1099 (1987) ("[T]here is no doubt that the Framers distrusted executive power at least as much, if not more, than they distrusted the legislature. . . . [T]he Framers were guided by the 'unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man.'" (citing Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 33 (1972))). An elegant discussion of the Framers' purposes in the constitutional distribution of national powers can be found in Sunstein, supra note 116, at 430-37.
137. See William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719, 722 (1984). Therefore: The celebrated statement of Justice Brandeis that "[t]he doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is only partially correct. . . . [T]he convention of 1787 was significantly motivated by the need to promote efficiency in the operations of government, and, insofar as it acted to preclude arbitrary power, it was arbitrary legislative power with which it was principally concerned. Dean Alfange, Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990) (citing Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting), and Louis Fisher, The Efficiency Side of Separated Powers, 5 J. AM. STUD. 113 (1971)); cf. Erwin Chemerinsky, A Paradox Without a Principle: A Comment on the Burger Court's Jurisprudence in Separation of Powers Cases, 60 S. CAL. L. REV. 1083, 1099 (1987) ("[T]here is no doubt that the Framers distrusted executive power at least as much, if not more, than they distrusted the legislature. . . . [T]he Framers were guided by the 'unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man.'" (citing Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 33 (1972))). An elegant discussion of the Framers' purposes in the constitutional distribution of national powers can be found in Sunstein, supra note 116, at 430-37.
138. See William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719, 722 (1984). Therefore: The celebrated statement of Justice Brandeis that "[t]he doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power" is only partially correct. . . . [T]he convention of 1787 was significantly motivated by the need to promote efficiency in the operations of government, and, insofar as it acted to preclude arbitrary power, it was arbitrary legislative power with which it was principally concerned. Dean Alfange, Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990) (citing Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting), and Louis Fisher, The Efficiency Side of Separated Powers, 5 J. AM. STUD. 113 (1971)); cf. Erwin Chemerinsky, A Paradox Without a Principle: A Comment on the Burger Court's Jurisprudence in Separation of Powers Cases, 60 S. CAL. L. REV. 1083, 1099 (1987) ("[T]here is no doubt that the Framers distrusted executive power at least as much, if not more, than they distrusted the legislature. . . . [T]he Framers were guided by the 'unhappy memories of royal prerogative, fear of tyranny, and distrust of any one man.'" (citing Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 33 (1972))). An elegant discussion of the Framers' purposes in the constitutional distribution of national powers can be found in Sunstein, supra note 116, at 430-37.
139. THE FEDERALIST No. 37, at 219 (James Madison) (G.P. Putnam's Sons ed., 1888).
140. See Banks, supra note 117, at 722 ("[T]he delegates chose to accept the implicit existence of separation of powers in the final document. . . . Madison wrote to Jefferson that the lines separating the three branches 'though in general so strongly marked in themselves, consist in many instances of mere shades of difference.'" (citations omitted)). On the Constitutional Convention, and concepts of separation of powers at that time, see generally, Gerhard Casper, An Essay in the Separation of Powers: Some Early Versions and Practices, 30 WM. & MARY L. REV. 211 (1989); William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 477-81 (1989).
141. See Banks, supra note 117, at 722 ("[T]he delegates chose to accept the implicit existence of separation of powers in the final document. . . . Madison wrote to Jefferson that the lines separating the three branches 'though in general so strongly marked in themselves, consist in many instances of mere shades of difference.'" (citations omitted)). On the Constitutional Convention, and concepts of separation of powers at that time, see generally, Gerhard Casper, An Essay in the Separation of Powers: Some Early Versions and Practices, 30 WM. & MARY L. REV. 211 (1989); William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 477-81 (1989).
142. Alfange, supra note 117, at 669 (citing RICHARD E. NEUSTADT, PRESIDENTIAL POWER 33 (1960)).
143. See generally Alfange, supra note 117, at 672-710 (providing an in-depth discussion of the blending of functions).
144. See U.S. CONST. art. II, § 3.
145. See U.S. CONST. art. I, § 7, cl. 2. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (characterizing the presidential veto as a legislative power).
146. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining
147. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
148. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
149. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
150. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
151. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
152. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
153. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
154. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
155. See U.S. CONST. art. I, § 2, cl. 5. The extent to which the prosecutorial power is an executive function is the subject of a great deal of debate. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court considered a separation of powers challenge to the Ethics in Government Act of 1978 ("Ethics Act"), which provided for a federal appeals court to appoint a special prosecutor after a determination by the Attorney General that an investigation into a member of the Executive Branch was warranted. In a lone dissent, Justice Scalia argued that the prosecutorial functions assigned to the independent counsel had "always" been conducted by the Executive and no other branch, and thus was clearly a purely executive power; see id. at 705-06 (Scalia, J., dissenting). Professor Krent has argued persuasively that criminal prosecution was not controlled by the Executive at the time the Constitution was adopted. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989). For a discussion of the controversy and the Morrison case, including a critique of Justice Scalia's dissent, see generally Gwyn, supra note 119, at 484-94. See also Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 485 (1997) (arguing that the Morrison decision and the Mistretta decision, which found that the sentencing guidelines commission comprised partly of federal judges did not violate separation of powers, should be revisited because such an arrangement can have a corrosive effect on the independence of, and public confidence in, the judiciary); Stephanie A. J. Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1070-71 (1990) (using evidence of the Framers' intent to illustrate that the majority opinion in Morrison is correct and that criminal prosecution need not be undertaken solely by executive officials); A Symposium on Morrisson v. Olson: Addressing the Constitutionality of the Independent Counsel Statute, 38 Am. U. L. Rev. 255 (1989); A Symposium on Special Prosecutions and the Role of the Independent Counsel, 16 HOFSTRA L. REV. 1 (1987). The recent investigation of President Clinton and the expiration of the Ethics Act on June 30, 1999, has sparked renewed interest in the wisdom and constitutionality of the Ethics Act. Former Whitewater Special Prosecutor Kenneth Starr himself favors abolition of the law. See Counsel Law Dying Unmourned, ARIZ. REPUBLIC, June 30, 1999, at A3; cf. Fix the Law, Ditch Starr, N.Y. DAILY NEWS, June 30, 1999, at 34 (arguing that the law should be fixed, rather than abolished, because the Justice Department can not fairly prosecute executive officials); David A. Sklansky, Starr, Singleton and the Prosecutor's Role, 26 FORDHAM L. REV. 509, 510-11 (1999) (demonstrating the special role of prosecutors in general by examining the actions of Independent Counsel Kenneth Starr); Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, AM. PROSPECT, May 1, 1998, at 20, 22 (urging immediate repeal of the 1978 act).
156. See U.S. CONST. art. I, § 3, cl. 6.
157. See U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). This language reflects a compromise at the Constitutional Convention, where there was extensive debate as to the need for any inferior federal courts at all. See generally RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 7-9 (4th ed. 1996). In a compromise proposed by James Madison, it was decided that the Supreme Court was to be created by the Constitution, but it would be left to Congress whether or not to create inferior courts. See id. at 8; U.S. CONST., art. III, § 1. Congress exercised its discretion to create lower federal courts in the first judiciary act, Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. In his controversial opinion in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-33 (1816), Justice Story, writing for the Court, declared that Congress was required to create lower federal courts so that the entire judicial power could be vested in federal courts. Congress, however, has never vested the entire jurisdiction permitted by Article III in federal courts. Federal courts do not have jurisdiction, for example, over diversity cases in which the amount in controversy is below the requirement for jurisdiction. The Court has accepted that Congress need not grant inferior courts the entire breadth of jurisdiction allowed by the Constitution. See infra note 127. Nonetheless, many scholars argue that Article III mandates the creation of at least some inferior federal courts. See, e.g., Akhil Reed Amar, A Neo- Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 272 (1985) ("All cases arising under federal law . . . must be capable of final resolution by a federal judge."); Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984) ("[I]n article III Congress was not given discretion over whether to create a federal judiciary or authority over its powers; rather, it was given power to decide whether inferior courts were necessary and, if so, so structure and organize them.").
158. See U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). This language reflects a compromise at the Constitutional Convention, where there was extensive debate as to the need for any inferior federal courts at all. See generally RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 7-9 (4th ed. 1996). In a compromise proposed by James Madison, it was decided that the Supreme Court was to be created by the Constitution, but it would be left to Congress whether or not to create inferior courts. See id. at 8; U.S. CONST., art. III, § 1. Congress exercised its discretion to create lower federal courts in the first judiciary act, Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. In his controversial opinion in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-33 (1816), Justice Story, writing for the Court, declared that Congress was required to create lower federal courts so that the entire judicial power could be vested in federal courts. Congress, however, has never vested the entire jurisdiction permitted by Article III in federal courts. Federal courts do not have jurisdiction, for example, over diversity cases in which the amount in controversy is below the requirement for jurisdiction. The Court has accepted that Congress need not grant inferior courts the entire breadth of jurisdiction allowed by the Constitution. See infra note 127. Nonetheless, many scholars argue that Article III mandates the creation of at least some inferior federal courts. See, e.g., Akhil Reed Amar, A Neo- Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 272 (1985) ("All cases arising under federal law . . . must be capable of final resolution by a federal judge."); Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984) ("[I]n article III Congress was not given discretion over whether to create a federal judiciary or authority over its powers; rather, it was given power to decide whether inferior courts were necessary and, if so, so structure and organize them.").
159. See U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). This language reflects a compromise at the Constitutional Convention, where there was extensive debate as to the need for any inferior federal courts at all. See generally RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 7-9 (4th ed. 1996). In a compromise proposed by James Madison, it was decided that the Supreme Court was to be created by the Constitution, but it would be left to Congress whether or not to create inferior courts. See id. at 8; U.S. CONST., art. III, § 1. Congress exercised its discretion to create lower federal courts in the first judiciary act, Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. In his controversial opinion in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-33 (1816), Justice Story, writing for the Court, declared that Congress was required to create lower federal courts so that the entire judicial power could be vested in federal courts. Congress, however, has never vested the entire jurisdiction permitted by Article III in federal courts. Federal courts do not have jurisdiction, for example, over diversity cases in which the amount in controversy is below the requirement for jurisdiction. The Court has accepted that Congress need not grant inferior courts the entire breadth of jurisdiction allowed by the Constitution. See infra note 127. Nonetheless, many scholars argue that Article III mandates the creation of at least some inferior federal courts. See, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 272 (1985) ("All cases arising under federal law . . . must be capable of final resolution by a federal judge."); Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984) ("[I]n article III Congress was not given discretion over whether to create a federal judiciary or authority over its powers; rather, it was given power to decide whether inferior courts were necessary and, if so, so structure and organize them.").
160. See U.S. CONST. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). This language reflects a compromise at the Constitutional Convention, where there was extensive debate as to the need for any inferior federal courts at all. See generally RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 7-9 (4th ed. 1996). In a compromise proposed by James Madison, it was decided that the Supreme Court was to be created by the Constitution, but it would be left to Congress whether or not to create inferior courts. See id. at 8; U.S. CONST., art. III, § 1. Congress exercised its discretion to create lower federal courts in the first judiciary act, Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. In his controversial opinion in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 328-33 (1816), Justice Story, writing for the Court, declared that Congress was required to create lower federal courts so that the entire judicial power could be vested in federal courts. Congress, however, has never vested the entire jurisdiction permitted by Article III in federal courts. Federal courts do not have jurisdiction, for example, over diversity cases in which the amount in controversy is below the requirement for jurisdiction. The Court has accepted that Congress need not grant inferior courts the entire breadth of jurisdiction allowed by the Constitution. See infra note 127. Nonetheless, many scholars argue that Article III mandates the creation of at least some inferior federal courts. See, e.g., Akhil Reed Amar, A Neo- Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 272 (1985) ("All cases arising under federal law . . . must be capable of final resolution by a federal judge."); Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984) ("[I]n article III Congress was not given discretion over whether to create a federal judiciary or authority over its powers; rather, it was given power to decide whether inferior courts were necessary and, if so, so structure and organize them.").
161. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term -Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
162. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
163. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
164. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
165. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
166. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
167. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984);
168. In Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), the Court reasoned that the greater power of Congress to create inferior courts carried with it the lesser power to control their jurisdiction, stating that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." See also Lockerty v. Phillips, 319 U.S. 182 (1943). Several commentators, however, have argued that Sheldon should be confined to its facts, because Congress's control over lower courts' jurisdiction is not plenary. Congress cannot, for example, deprive the courts of their "essential functions" of determining the meaning of federal law and maintaining the supremacy of federal law. See, e.g., Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 42 (1981) ("Congress cannot exclude federal jurisdiction to the point of dismantling [the] framework [of judicial authority]."); see also Laurence H. Tribe, Commentary, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129, 142-43 (1981) (arguing that Congress cannot remove categories of constitutional claims from federal court jurisdiction because to do so would place an impermissible burden on the underlying constitutional rights). For support of the view that Congress has plenary control over federal court jurisdiction, see, for example, Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895, 920 (1984); Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. REV. 143, 157 (1982); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1004-06 (1965). Citations to much of the extensive debate on the issue are collected in FALLON ET AL., supra note 126, at 358-87. Despite its view that Congress controls federal jurisdiction, the Court does not hesitate to exert control itself by, for example, invoking various doctrines of abstention in declining to exercise jurisdiction conferred by Congress. See, e.g., Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941) (stating that a federal court should "stay[ ] its hands" when a controversy can be resolved on a state issue in a state court, thus avoiding adjudication of a substantial and sensitive federal constitutional question). The constitutionality of this "Jurisdictional common law" is also the subject of extensive controversy and debate. See, e.g., David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 545 (1985) (defending the legitimacy of the abstention doctrines). But see Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 74 (1984) (arguing "that neither total nor partial judge-made abstention is acceptable as a matter of legal process and separation of powers"). An outline of the debate may be found in Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (proposing a middle ground).
169. It was established in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 148 (1803), that Congress cannot limit the original jurisdiction of the Supreme Court, which is conferred by Article III, but the appellate jurisdiction of the Court is subject to congressional control under the "exceptions" clause. See U.S. CONST. art. III, § 2, cl. 2 ("In all the other Cases . . . the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make."); see also Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 512-14 (1868). As with congressional control over lower federal courts' jurisdiction, some commentators argue that Congress cannot deprive the Supreme Court of its "essential constitutional functions of maintaining the uniformity and supremacy of federal law." Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 201-02 (1960). On the issue of congressional control of jurisdiction of both the Supreme Court and the lower courts, the most influential and well-known piece is Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953). An annotated version of the dialogue, updated with citations to more recent cases, can be found in RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 393-423 (3rd ed. 1988).
170. It was established in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 148 (1803), that Congress cannot limit the original jurisdiction of the Supreme Court, which is conferred by Article III, but the appellate jurisdiction of the Court is subject to congressional control under the "exceptions" clause. See U.S. CONST. art. III, § 2, cl. 2 ("In all the other Cases . . . the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make."); see also Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 512-14 (1868). As with congressional control over lower federal courts' jurisdiction, some commentators argue that Congress cannot deprive the Supreme Court of its "essential constitutional functions of maintaining the uniformity and supremacy of federal law." Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 201-02 (1960). On the issue of congressional control of jurisdiction of both the Supreme Court and the lower courts, the most influential and well-known piece is Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953). An annotated version of the dialogue, updated with citations to more recent cases, can be found in RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 393-423 (3rd ed. 1988).
171. It was established in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 148 (1803), that Congress cannot limit the original jurisdiction of the Supreme Court, which is conferred by Article III, but the appellate jurisdiction of the Court is subject to congressional control under the "exceptions" clause. See U.S. CONST. art. III, § 2, cl. 2 ("In all the other Cases . . . the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make."); see also Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 512-14 (1868). As with congressional control over lower federal courts' jurisdiction, some commentators argue that Congress cannot deprive the Supreme Court of its "essential constitutional functions of maintaining the uniformity and supremacy of federal law." Leonard G. Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157, 201-02 (1960). On the issue of congressional control of jurisdiction of both the Supreme Court and the lower courts, the most influential and well-known piece is Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953). An annotated version of the dialogue, updated with citations to more recent cases, can be found in RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 393-423 (3rd ed. 1988).
172. See U.S. CONST. art. II, § 2, cl. 2 (establishing that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds Qf the Senators present concur"). As Alexander Hamilton noted, the treaty power is not easily classified as either legislative or executive: [The treaty power] does not seem to fall within the definition of either [the legislative or executive power]. The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. . . . Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. THE FEDERALIST No. 75, at 380 (Alexander Hamilton) (Bantam ed., 1982).
173. THE FEDERALIST No. 48, at 250 (James Madison) (Bantam ed., 1982). Madison wrote: [The political maxim of separation of powers] does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other. . . . [U]nless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained. Id. See Alfange, supra note 117, at 712.
174. Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 39 (1993). Monaghan wrote: Hamilton strongly insisted that public administration was largely an executive function, and he assumed that this necessarily entailed some discretion as to means. Jefferson espoused a perhaps even more expansive version of executive power. While consistently denying that the Executive could be invested with "legislative" or "judiciary" powers, he wrote to Governor Cabell that "if means specified by an act are impracticable, the constitutional [executive] power remains, and supplies them. . . . This aptitude of means to the end of a law is essentially necessary for those who are executive; otherwise the objection that our government is an impracticable one would really be verified." Id. (citations omitted).
175. See infra Part III.C. See, e.g., J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 409 (1928) (holding that the Constitution permits Congress to "seek[ ] assistance from another branch, [provided] the extent and character of that assistance [is] fixed according to common sense and the inherent necessities of the governmental co-ordination" and setting out the "intelligible principle" standard); Field v. Clark, 143 U.S. 649 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825); Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813).
176. See Philip B. Kurland, The Rise and Fall of the "Doctrine" of Separation of Powers, 85 MICH. L. REV. 592, 603-05 (1986).
177. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 260-379 (1980).
178. Alfange, supra note 117, at 702 ("Whatever the merits or desirability of judicial review may be . . . the practice is patently inconsistent with any notion of the strict separation of powers.").
179. See GERHARD CASPER, SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD 139 (1997); Gerhard Casper, An Essay in the Separation of Powers: Some Early Versions and Practices, 30 WM. & MARY L. REV. 211 (1989); supra note 119.
180. See GERHARD CASPER, SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD 139 (1997); Gerhard Casper, An Essay in the Separation of Powers: Some Early Versions and Practices, 30 WM. & MARY L. REV. 211 (1989); supra note 119.
181. Invalid Pensions Act of Mar. 23, 1792, ch. 11,1 Stat. 243 (repealed 1793). For a description of this incident and of other ways in which members of the judiciary in the early period played a role in "working out" the Constitution's separation of powers, see Maeva Marcus, Separation of Powers in the Early National Period, 30 WM. & MARY L. REV. 269, 269, 272-73 (1989).
182. Invalid Pensions Act of Mar. 23, 1792, ch. 11,1 Stat. 243 (repealed 1793). For a description of this incident and of other ways in which members of the judiciary in the early period played a role in "working out" the Constitution's separation of powers, see Maeva Marcus, Separation of Powers in the Early National Period, 30 WM. & MARY L. REV. 269, 269, 272-73 (1989).
183. See Marcus, supra note 137, at 272 & n.12 (citing circuit court minutes and letters from various circuit judges to George Washington).
184. 5 U.S. (1 Cranch) 137 (1803).
185. Some commentators have argued that the growth of administrative agencies in government and concomitant delegations of lawmaking power by Congress could not have been possible without judicial review. Judge Leventhal of the D.C. Circuit summed up the argument: "Congress has been willing to delegate its legislative powers broadly-and the courts have upheld such delegation - because there is court review to assure that the agency exercises the delegated power within statutory limits." Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (Leventhal, J., concurring) (citations omitted); see also Michael Herz, The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress, 14 CONST. COMMENTARY 319, 327-29 & nn.25-27 (1997).
186. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 160-61 (2d ed. 1986).
187. See LEARNED HAND, THE BILL OF RIGHTS 11-14 (1958).
188. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 643 (1984) (citations omitted). Nonetheless, the Court often has taken a "hands-off" approach to separation of powers cases, particularly those involving the Executive, by finding them to involve nonjusticiable political questions. See generally Chemerinsky, supra note 117, at 1086 & n.10, 1102 (arguing that "[s]eparation of powers questions should be justiciable"). Even where the Court has addressed the separation of powers issues on the merits, it has taken a deferential approach, referred to by Professor Sunstein as "Holmesian" by "presum[ing] that whatever Congress does in the area of separation of powers is constitutional, unless no plausible argument can be made in its favor." Sunstein, supra note 116, at 493 (citations omitted). Professor Verkuil advocates this approach. See Verkuil, supra note 23, at 320 (arguing for a "rule of law" conception of separation of powers, under which delegations of authority by Congress to the President are unassailable, as no conflict of interest exists). The "Holmesian" approach is reflected in the Clinton opinion. The majority explains in a footnote that "[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Clinton v. City of New York, 118 S. Ct. 2091, 2107 n.42 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring). Justice Breyer cited the same passage in his dissent, arguing that the Court should not interfere in the instant case because there was no dispute between the other two branches. See id. at 2119-20 (Breyer, J., dissenting).
189. An excellent description of the two categories can be found in Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488 (1987). He explains that: The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government (and consequently appearing to draw rather sharp boundaries), and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened. Id. at 489 (citations omitted). Professor Eskridge contrasts the formalist and functionalist theories of rules, reasoning process, and jurisprudence in a recent essay. See William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 HARV. J.L. & PUB. POL'Y 21 (1998). Professor Sunstein also provides an elegant discussion and critique of the two approaches, as well as of a third "Holmesian" approach. See Sunstein, supra note 116, at 493-96.
190. An excellent description of the two categories can be found in Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488 (1987). He explains that: The Supreme Court has vacillated over the years between using a formalistic approach to separation-of-powers issues grounded in the perceived necessity of maintaining three distinct branches of government (and consequently appearing to draw rather sharp boundaries), and a functional approach that stresses core function and relationship, and permits a good deal of flexibility when these attributes are not threatened. Id. at 489 (citations omitted). Professor Eskridge contrasts the formalist and functionalist theories of rules, reasoning process, and jurisprudence in a recent essay. See William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 HARV. J.L. & PUB. POL'Y 21 (1998). Professor Sunstein also provides an elegant discussion and critique of the two approaches, as well as of a third "Holmesian" approach. See Sunstein, supra note 116, at 493-96.
191. Gwyn, supra note 119, at 474-75.
192. id. at 475.
193. Buckley v. Valeo, 424 U.S. 1, 122 (1976); see also Strauss, supra note 144, at 495-96.
194. Opinions of the Court generally characterized as formalist include: Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) (invalidating section 27A(b) of the Securities Exchange Act, which required the reinstatement of any suit commenced before its enactment that was dismissed as time-barred); Bowsher, 478 U.S. at 736 (invalidating Gramm-Rudman-Hollings Act for allowing Congress to participate in its execution); INS v. Chadha, 462 U.S. 919, 959 (1983) (invalidating legislative veto); Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982) (plurality opinion invalidating the establishment of bankruptcy courts); and, most recently, the decision in Clinton. Justice Scalia is the most rigid formalist on the Court today. See, e.g., Mistretta v. United States, 488 U.S. 361, 426 (1989) (Scalia, J., dissenting) (lamenting "the regrettable tendency of our recent separation-of-powers jurisprudence to treat the Constitution as though it were no more than a generalized prescription that the functions of the Branches should not be commingled too much . . . to be determined, case-by-case, by this Court"). To Justice Scalia, the sole dissenter from the Mistretta opinion, the only acceptable commingling of the three functions of government are those envisioned by the Framers and expressly permitted in the Constitution. See id. at 426-27 (Scalia, J, dissenting); see also Plaut, 514 U.S. at 239 (Scalia, J., dissenting) ("[T]he doctrine of separation of powers . . . is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict."). Among the Court's opinions generally characterized as functionalist are: Morrison v. Olson, 487 U.S. 654, 696-97 (1988) (upholding the independent counsel provisions of the Ethics Act on the grounds that it did not increase Congress's powers at the expense of the Executive Branch and did not prevent the Executive Branch from carrying out its constitutional functions); Mistretta, 488 U.S. at 412 (upholding constitutionality of Sentencing Guidelines promulgated by Sentencing Commission on which Article III judges served); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 858 (1986) (upholding a congressional grant of power to an administrative adjudicator to resolve a state common law counterclaim and finding the claim need not be resolved by an Article III court); Dames & Moore v. Regan, 453 U.S. 654, 674 (1981) (upholding presidential order nullifying attachments and liens on Iranian assets and suspending claims that could be presented to an International Claims Tribunal, as a necessary incident to the resolution of a major foreign policy dispute-the hostage crisis); Nixon v. Adm'r of Gen. Serv., 433 U.S. 425, 500 (1977) (upholding a law allowing the Administrator of General Services access to Presidential materials for archiving purposes); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (setting forth a three-tiered approach to determine the constitutionality of executive orders).
195. Professor Tushnet has noted that "[f]ormalist opinions almost invariably strike down legislation; functional opinions almost invariably uphold it." Mark Tushnet, The Sentencing Commission and Constitutional Theory: Bowls and Plateaus in Separation of Powers Theory, 66 S. CAL. L. REV. 581, 584 (1992). He argues that "in fact there are no substantive differences between the two approaches," but that the approach chosen depends on the result the court wishes to achieve. Id. at 581. Individual Justices also have been inconsistent in their approaches. For example, Justice Rehnquist, who dissented from Brennan's functionalist opinion in Nixon, shifted to a functionalist approach in Morrison. Justice Brennan, whose opinion in Nixon has been called the "high-water mark" of functionalism, Alfange, supra note 117, at 720, took a more formalist stance in his dissenting opinion in Schor. 150 Elliott, supra note 1, at 506. Professor Elliott's scathing criticism continues: The kindest thing that anyone seems to be able to say about recent separation of powers decisions is that in certain cases the Supreme Court happened to reach the right result, albeit for the wrong reasons. Some commentators, while critical of the Court's reasoning (or lack thereof), appear to take great comfort from their ability to write "alternative opinions" in which they supply reasoned rationales for the Court's results. In my opinion, this draws just the wrong lesson. Far from being a hopeful sign, it is a damning commentary on the abysmal state of our current separation of powers jurisprudence that any reasonably competent law professor can supply better opinions than the justices of the Supreme Court in separation of powers cases. Id. at 506-07 (citations omitted); see also Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV. 357, 364-65 (1990) (stating that "separation of powers cases too often seem to be decided on the basis of either a cramped originalism that assumes that a glance at the sacred text of Madison's notes will resolve all questions, or a policy analysis that could have been written by a congressional staffer").
196. Professor Tushnet has noted that "[f]ormalist opinions almost invariably strike down legislation; functional opinions almost invariably uphold it." Mark Tushnet, The Sentencing Commission and Constitutional Theory: Bowls and Plateaus in Separation of Powers Theory, 66 S. CAL. L. REV. 581, 584 (1992). He argues that "in fact there are no substantive differences between the two approaches," but that the approach chosen depends on the result the court wishes to achieve. Id. at 581. Individual Justices also have been inconsistent in their approaches. For example, Justice Rehnquist, who dissented from Brennan's functionalist opinion in Nixon, shifted to a functionalist approach in Morrison. Justice Brennan, whose opinion in Nixon has been called the "high-water mark" of functionalism, Alfange, supra note 117, at 720, took a more formalist stance in his dissenting opinion in Schor. 150 Elliott, supra note 1, at 506. Professor Elliott's scathing criticism continues: The kindest thing that anyone seems to be able to say about recent separation of powers decisions is that in certain cases the Supreme Court happened to reach the right result, albeit for the wrong reasons. Some commentators, while critical of the Court's reasoning (or lack thereof), appear to take great comfort from their ability to write "alternative opinions" in which they supply reasoned rationales for the Court's results. In my opinion, this draws just the wrong lesson. Far from being a hopeful sign, it is a damning commentary on the abysmal state of our current separation of powers jurisprudence that any reasonably competent law professor can supply better opinions than the justices of the Supreme Court in separation of powers cases. Id. at 506-07 (citations omitted); see also Stephen L. Carter, Constitutional Improprieties: Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV. 357, 364-65 (1990) (stating that "separation of powers cases too often seem to be decided on the basis of either a cramped originalism that assumes that a glance at the sacred text of Madison's notes will resolve all questions, or a policy analysis that could have been written by a congressional staffer").
197. See, e.g., Chemerinsky, supra note 117, at 1105-09; Suzanna Sherry, Separation of Powers: Asking a Different Question, 30 WM. & MARY L. REV. 287, 289 (1989) (contrasting eighteenth-century approach to separation of powers questions-asking how best to define separation of powers - with the modern approach - treating the constitutional text as an authoritative mandate - and concluding that such "formalism can be characterized as an abdication of responsibility by careless deference to a prior determination"); Strauss, supra note 144, at 577- 78; Sunstein, supra note 116, at 492, 495-96; Paul R. Verkuil, The Status of Independent Agencies After Bowsher v. Synar, 1986 DUKE L.J. 779, 785-86 ("A checks-and-balances approach asks the proper constitutional question: Is one branch trying to overreach and seize the powers of the other?"); see also Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 959 (1997) (criticizing the Court's formalistic approach to separation of powers cases as "reason[ing] deductively from minimally justified premises and expressly es chew[ing] consideration of what result would be best from a policy perspective").
198. See, e.g., Chemerinsky, supra note 117, at 1105-09; Suzanna Sherry, Separation of Powers: Asking a Different Question, 30 WM. & MARY L. REV. 287, 289 (1989) (contrasting eighteenth-century approach to separation of powers questions-asking how best to define separation of powers - with the modern approach - treating the constitutional text as an authoritative mandate - and concluding that such "formalism can be characterized as an abdication of responsibility by careless deference to a prior determination"); Strauss, supra note 144, at 577-78; Sunstein, supra note 116, at 492, 495-96; Paul R. Verkuil, The Status of Independent Agencies After Bowsher v. Synar, 1986 DUKE L.J. 779, 785-86 ("A checks-and-balances approach asks the proper constitutional question: Is one branch trying to overreach and seize the powers of the other?"); see also Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 959 (1997) (criticizing the Court's formalistic approach to separation of powers cases as "reason[ing] deductively from minimally justified premises and expressly es chew[ing] consideration of what result would be best from a policy perspective").
199. See, e.g., Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821, 861-65 (1985) (arguing for an originalist, formalist approach to separation of powers cases, which would help to "legitimate" a non-originalist approach in cases involving individual rights); Martin H. Redish, Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta, 39 DEPAUL L. REV. 299, 311-12 (1990) (arguing that a functional test for separation of powers is "all but unworkable").
200. See, e.g., Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821, 861-65 (1985) (arguing for an originalist, formalist approach to separation of powers cases, which would help to "legitimate" a non-originalist approach in cases involving individual rights); Martin H. Redish, Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta, 39 DEPAUL L. REV. 299, 311-12 (1990) (arguing that a functional test for separation of powers is "all but unworkable").
201. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 214-15 (1980) (arguing that where the framers did not envision situations, they could not intend that a pertinent constitutional clause applied to the new circumstances); Stephen L. Carter, From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers, 1987 BYU L. REV. 719, 795-98 (outlining a "sensitive analysis" for resolving situations unforeseen by the Framers). Indeed, there are often disagreements as to whether a situation was foreseen by the Framers. In the context of the debate over the legislative veto, for example, there is a dispute over the extent to which the Framers contemplated omnibus bills. See Sidak & Smith, supra note 57, at 469-72 (outlining the debate and arguing that the Framers could not have envisioned the large-scale legislative bundling practiced by Congress today).
202. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 214-15 (1980) (arguing that where the framers did not envision situations, they could not intend that a pertinent constitutional clause applied to the new circumstances); Stephen L. Carter, From Sick Chicken to Synar: The Evolution and Subsequent De-Evolution of the Separation of Powers, 1987 BYU L. REV. 719, 795-98 (outlining a "sensitive analysis" for resolving situations unforeseen by the Framers). Indeed, there are often disagreements as to whether a situation was foreseen by the Framers. In the context of the debate over the legislative veto, for example, there is a dispute over the extent to which the Framers contemplated omnibus bills. See Sidak & Smith, supra note 57, at 469-72 (outlining the debate and arguing that the Framers could not have envisioned the large-scale legislative bundling practiced by Congress today).
203. See Elliott, supra note 1, at 524. Elliot writes: The mental image that most people have of the Framers of the Constitution painstakingly debating and rewriting the Constitution line-by-line at the Constitutional Convention is simply false. The Constitutional Convention debated and voted on principles of constitutional structure, as reflected in a series of resolutions. The actual wording of the Constitution, however, was written by a committee of five men, headed by Gouverneur Morris, over what amounted to a long weekend. . . . [W]e might as well make our constitutional fate turn on the entrails of birds so as to entrust the constitutionality of innovations in governmental structure to whether . . . the "Committee on Style" thought to put a particular word or phrase into their draft of the Constitution. Id. (citations omitted)
204. Whether or not a particular section of the constitutional text is indeterminate itself is often the subject of heated debate. Witness the recent exchange between Professors Tribe, Ackerman, and Golove on the meaning of the Treaty Clause, which provides that the President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2. Professors Ackerman and Golove argue that the constitutional text is indeterminate and can be read to support the congressional-executive agreement, an international agreement which Congress approves by majority vote when the President could submit it to the Senate for a two-thirds approval. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995). Professor Tribe argues that the text of Article II is not indeterminate. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1272-76 (1995). In context, he argues, the only plausible construction is that the Treaty Clause is exclusive. See id. The congressional-executive agreement is therefore unconstitutional. See id. at 1276-78. In a subsequent article, Professor Golove argues that a serious textual and structural analysis of the Treaty Clause supports the argument that it is nonexclusive. See David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791 (1998).
205. Whether or not a particular section of the constitutional text is indeterminate itself is often the subject of heated debate. Witness the recent exchange between Professors Tribe, Ackerman, and Golove on the meaning of the Treaty Clause, which provides that the President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2. Professors Ackerman and Golove argue that the constitutional text is indeterminate and can be read to support the congressional-executive agreement, an international agreement which Congress approves by majority vote when the President could submit it to the Senate for a two-thirds approval. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995). Professor Tribe argues that the text of Article II is not indeterminate. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1272-76 (1995). In context, he argues, the only plausible construction is that the Treaty Clause is exclusive. See id. The congressional-executive agreement is therefore unconstitutional. See id. at 1276-78. In a subsequent article, Professor Golove argues that a serious textual and structural analysis of the Treaty Clause supports the argument that it is nonexclusive. See David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791 (1998).
206. Whether or not a particular section of the constitutional text is indeterminate itself is often the subject of heated debate. Witness the recent exchange between Professors Tribe, Ackerman, and Golove on the meaning of the Treaty Clause, which provides that the President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. CONST. art. II, § 2, cl. 2. Professors Ackerman and Golove argue that the constitutional text is indeterminate and can be read to support the congressional-executive agreement, an international agreement which Congress approves by majority vote when the President could submit it to the Senate for a two-thirds approval. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995). Professor Tribe argues that the text of Article II is not indeterminate. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1272-76 (1995). In context, he argues, the only plausible construction is that the Treaty Clause is exclusive. See id. The congressional-executive agreement is therefore unconstitutional. See id. at 1276-78. In a subsequent article, Professor Golove argues that a serious textual and structural analysis of the Treaty Clause supports the argument that it is nonexclusive. See David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791 (1998).
207. See Strauss, supra note 143, at 599.
208. THE FEDERALIST No. 37, at 179 (James Madison) (Bantam ed., 1982).
209. See INS v. Chadha, 462 U.S. 919, 959 (1983).
210. See id. at 963-67 (Powell, J., concurring).
211. See supra note 57 and accompanying text.
212. See Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) (arguing that the "executive" power is to be defined "by reference to what has always and everywhere - if conducted by government at all - been conducted never by the legislature, never by the courts, and always by the executive. . . . Governmental investigation and prosecution of crimes is a quintessentially executive function."). But see supra note 124 (discussing the debate over whether prosecution is solely an executive function).
213. Strauss, supra note 144, at 526. According to Strauss: Although formalism has its advantages and functionalism its dangers, the former is simply incapable of describing the government we have. It is inconsistent with the framers' judgment-as embodied in the necessary and proper clause and in the decision to omit any description of government proper from the constitutional text -that the optimal level of specificity about the forms of government is low. Id. (citations omitted).
214. See A Symposium on Administrative Law: "The Uneasy Constitutional Status of Administrative Agencies," 36 AM. U. L. REV. 277 (1987). On the Framers' intent to create a unitary executive, see also Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 37-47 (1995) (outlining Framers' reasoning for creating unitary executive based on energy, accountability, and separation of powers); Strauss, supra note 143, at 599-602 (reviewing constitutional history and noting that proposals for a council of advisors or multiple executives were rejected).
215. See A Symposium on Administrative Law: "The Uneasy Constitutional Status of Administrative Agencies," 36 AM. U. L. REV. 277 (1987). On the Framers' intent to create a unitary executive, see also Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 37-47 (1995) (outlining Framers' reasoning for creating unitary executive based on energy, accountability, and separation of powers); Strauss, supra note 143, at 599-602 (reviewing constitutional history and noting that proposals for a council of advisors or multiple executives were rejected).
216. Strauss, supra note 144, at 493.
217. Gwyn, supra note 119, at 475.
218. See Tushnet, supra note 149, at 583 & n.8 (citing Redish, supra note 152, at 306). Tushnet adopts Redish's argument that: [A]ny balancing between separation of powers interests, which are largely prophylactic in nature, and concrete competing social or political interests will invariably result in a finding that favors the latter, mainly because of the inherent difficulty in recognizing any direct or immediate harm flowing from an abandonment of separation of powers principles. Redish, supra note 152, at 306.
219. Tushnet, supra note 149, at 596.
220. See Raines v. Byrd, 521 U.S. 811, 814 (1997) ("The Act went into effect on January 1, 1997. The next day, appellees filed a complaint in the District Court for the District of Columbia." (citations omitted)).
221. See, e.g., Neal E. Devins, In Search of the Lost Chord: Reflections on the 1996 Item Veto Act, 47 CASE W. RES. L. REV. 1605, 1632-34 (1997) (doubting the effectiveness of the LIVA to bring fiscal responsibility to the federal government).
222. See INS v. Chadha, 462 U.S. 919, 968 (1983) (White, J., dissenting) ("[O]ver the past five decades, the legislative veto has been placed in nearly 200 statutes."). Justice White appended to his opinion a list of selected statutes containing one-house veto provisions. Id. at 1003-13; see also Strauss, supra note 23, at 790-91 (describing Congress' use of the legislative veto from 1930 to 1982).
223. See Flaherty, supra note 60, at 1832-34 ("As Justice White made clear in Chadha, the legislative veto was a classic response to the administrative state.") Justice White, dissenting in Chadha, argued: The history of the legislative veto . . . makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches . . . . Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Art. I as the Nation's lawmaker. While the President has often objected to particular legislative vetoes, . . . the Executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority. INS v. Chadha, 462 U.S. at 974 (White, J., dissenting).
224. CONTRACT WITH AMERICA (Ed Gillespie & Bob Schellhas eds., 1994).
225. See Herz, supra note 140, at 319, 332.
226. Id. at 320. Some proponents of functionalism recognized the potential for abuse of the legislative veto and thus approved of the decision, if not the approach, in Chadha. See, e.g., Tribe, supra note 155, at 1238 (arguing that the legislative one-house veto "conflicts with the basic architecture of the federal government under the Constitution"); cf. Strauss, supra note 23, at 812-17 (arguing that whereas the one-house veto violates separation of powers concerns when used to control delegations to administrative agencies, it is'an appropriate trade-off when it is used to control authority delegated to the President himself, as such a delegation might not be made without the one-house veto and thus, in such cases, the one-house veto actually empowers the President as much as Congress).
227. Tushnet, supra note 149, at 605.
228. See generally Strauss, supra note 143, at 576-77; Elliott, supra note 1, at 508.
229. See supra note 121 and accompanying text.
230. Burt Neuborne, Formalism, Functionalism, and the Separation of Powers, 22 HARV. J.L. & PUB. POL'Y 45, 48 (1998).
231. Id. at 47. Professor Eskridge, in the same symposium, provided an insightful discussion of the interconnections between the formalist and functionalist approaches in the Court's opinions. See Eskridge, supra 144, at 24 ("[F]ormalism and functionalism are frequently and maybe typically interconnected. They are a 'both-and' inquiry, rather than an 'either-or' inquiry. Because state legitimacy depends upon both formal rule-following and functional efficacy, constitutional reasoning pervasively, and often unconsciously, melds formalist and functionalist justifications.").
232. Tribe, supra note 155, at 1236. Professor Tribe: [U]se[s] the phrase "basic architecture" quite deliberately. Had the text been construed without constant attention to the fact that it does indeed define an architecture - a connected structure rather than simply a sequence of directives, powers, and prohibitions - there is little reason to suppose that it could have become the basis for such success as it has enjoyed. Id.
233. 181 U.S. CONST. amend. I.
234. U.S. CONST. amend. V.
235. See Elliott, supra note 1, at 508.
236. See U.S. CONST. art. I, § 7, cl. 2.
237. See, e.g., DAVID SCHOENBROD, Power Without Responsibility (1993). But see Cass R. Sunstein, Nondelegation Cannons at 4 (visited Mar. 17, 2000) 〈http://www.law.uchicago.edu/Publications/Working/index.html〉 ("There is no unambiguous textual barrier to delegations - no constitutional provision says that the legislative power is nondelegable - and in fact there is no explicit evidence that the framers and ratifiers of the original Constitution believed that it contained a nondelegation doctrine." (citations omitted)).
238. See, e.g., DAVID SCHOENBROD, Power Without Responsibility (1993). But see Cass R. Sunstein, Nondelegation Cannons at 4 (visited Mar. 17, 2000) 〈http://www.law.uchicago.edu/Publications/Working/index.html〉 ("There is no unambiguous textual barrier to delegations - no constitutional provision says that the legislative power is nondelegable - and in fact there is no explicit evidence that the framers and ratifiers of the original Constitution believed that it contained a nondelegation doctrine." (citations omitted)).
239. 23 U.S. (10 Wheat) 1 (1825).
240. See id. at 41-42.
241. Id. at 42-43.
242. Id. at 43, 46.
243. Id. at 45.
244. 143 U.S. 649 (1892). The Field case was distinguished by the majority in Clinton. See supra notes 86-93 and accompanying text.
245. Field, 143 U.S. at 692.
246. See id.
247. See id. at 693.
248. 220 U.S. 506 (1911).
249. Id. at 509 (citing Law of June 4, 1897, ch. 2, 30 Stat. 35.).
250. Cf. Sunstein, supra note 116, at 445 (distinguishing legalistic, technocratic, and political decisions by administrators).
251. Grimaud, 220 U.S. at 517, 522-23 (quoting Wyman v. Southard, 23 U.S. (10 Wheat) 1, 43 (1825)).
252. Within the space of two years, the Court upheld three constitutional challenges to delegations made during the initial years of the New Deal. See Panama Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935) (invalidating delegation under the National Industrial Recovery Act ("NIRA") that authorized the President to prohibit transportation in interstate commerce of certain petroleum products, stating that "Congress has declared no policy, has established no standard, has laid down no rule"); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541 (1935) (invalidating core delegation in NIRA on the grounds that it "supplie[d] no standards"); Carter v. Carter Coal Co., 298 U.S. 238, 310-11 (1936) (invalidating statutory delegation to fix wages and hours on the grounds that it was arbitrary and violated due process). Today the Court routinely rejects delegation challenges. See BRAVEMAN ET AL., supra note 87, § 2.03, at 83; see also Sunstein, supra note 185, at 6. Although other innovations invalidated by the Court, including the one-house veto, the Gramm-Rudman-Hollings Act, and the LIVA, also involve delegations, the Court did not analyze them as such, and the Court did not adjudge them invalid under the delegation doctrine.
253. See, e.g., Yakus v. United States, 321 U.S. 414, 423 (1944) (upholding delegation in Emergency Price Control Act, which authorized the Office of Price Administration to fix maximum prices).
254. Professor Ackerman has described the New Deal, and the Court's capitulation to public pressure in its favor, as an episode of "higher lawmaking," in which the Constitution is amended outside of the procedures set forth in Article V. E.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 51-52 (1991) (arguing that the New Dealers "rejected the traditional form of an amendment" through the process set out in Article V and instead depended on the Supreme Court "to elaborate their new activist vision through a series of transformative opinions"); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 63, 64-66 (Sanford Levinson, ed., 1995) ("During periods of constitutional politics, the higher lawmaking system encourages the engaged citizenry to focus on the fundamental issues and determine whether any of the proposed solutions can gain the considered support, and therefore the accompanying political legitimacy, of a mobilized majority."). For criticisms of Professor Ackerman's theory, see Tribe, supra note 155, at 1224-33 (declaring Professor Ackerman's theory constitutionally suspect); see also Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121-22 (1996) (criticizing a similar theory put forth by Professor Akhil Amar).
255. Professor Ackerman has described the New Deal, and the Court's capitulation to public pressure in its favor, as an episode of "higher lawmaking," in which the Constitution is amended outside of the procedures set forth in Article V. E.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 51-52 (1991) (arguing that the New Dealers "rejected the traditional form of an amendment" through the process set out in Article V and instead depended on the Supreme Court "to elaborate their new activist vision through a series of transformative opinions"); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 63, 64-66 (Sanford Levinson, ed., 1995) ("During periods of constitutional politics, the higher lawmaking system encourages the engaged citizenry to focus on the fundamental issues and determine whether any of the proposed solutions can gain the considered support, and therefore the accompanying political legitimacy, of a mobilized majority."). For criticisms of Professor Ackerman's theory, see Tribe, supra note 155, at 1224-33 (declaring Professor Ackerman's theory constitutionally suspect); see also Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121-22 (1996) (criticizing a similar theory put forth by Professor Akhil Amar).
256. Professor Ackerman has described the New Deal, and the Court's capitulation to public pressure in its favor, as an episode of "higher lawmaking," in which the Constitution is amended outside of the procedures set forth in Article V. E.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 51-52 (1991) (arguing that the New Dealers "rejected the traditional form of an amendment" through the process set out in Article V and instead depended on the Supreme Court "to elaborate their new activist vision through a series of transformative opinions"); Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 63, 64-66 (Sanford Levinson, ed., 1995) ("During periods of constitutional politics, the higher lawmaking system encourages the engaged citizenry to focus on the fundamental issues and determine whether any of the proposed solutions can gain the considered support, and therefore the accompanying political legitimacy, of a mobilized majority."). For criticisms of Professor Ackerman's theory, see Tribe, supra note 155, at 1224-33 (declaring Professor Ackerman's theory constitutionally suspect); see also Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 121-22 (1996) (criticizing a similar theory put forth by Professor Akhil Amar).
257. See generally Strauss, supra note 144, at 492-93.
258. See generally Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 478-88 (1989) (explaining the evolution of the Court's delegation doctrine). Many scholars have argued that President Roosevelt's failed attempt at packing the Court in 1937 also helped nudge the Court towards a "switch in time." See Laura Kalman, Law, Politics, and the New Deal(s), 108 YALE L.J. 2166, 2168-85 (1999) (discussing the debate "between internalists, who point to doctrinal, intellectual causes in explaining constitutional change during the New Deal, and externalists, who stress political reasons").
259. See generally Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 478-88 (1989) (explaining the evolution of the Court's delegation doctrine). Many scholars have argued that President Roosevelt's failed attempt at packing the Court in 1937 also helped nudge the Court towards a "switch in time." See Laura Kalman, Law, Politics, and the New Deal(s), 108 YALE L.J. 2166, 2168-85 (1999) (discussing the debate "between internalists, who point to doctrinal, intellectual causes in explaining constitutional change during the New Deal, and externalists, who stress political reasons").
260. Panama Ref., 293 U.S. at 421-26. The Court explained: The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. . . . [T]he Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy, that is, as Chief Justice Marshall expressed it, "to fill up the details" under the general provisions made by the Legislature. Id. (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825); see also Schechter Poultry, 295 U.S. at 541 (invalidating delegation under NIRA because it "supplies no standards").
261. Panama Ref., 293 U.S. at 421-26. The Court explained: The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. . . . [T]he Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy, that is, as Chief Justice Marshall expressed it, "to fill up the details" under the general provisions made by the Legislature. Id. (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825); see also Schechter Poultry, 295 U.S. at 541 (invalidating delegation under NIRA because it "supplies no standards").
262. In Touby v. United States, 500 U.S. 160, 165 (1991), the Court articulated the doctrine by declaring that "[s]o long as Congress 'lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" (quoting Hampton & Co. v. United States, 276 U.S. 394, 409 (1928)).
263. See id.
264. See, e.g., THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES 92-126 (2d ed. 1979) ("Policy without law is clearly constitutional, according to present judicial practice."); KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE §§ 2.01- 2.02 (1958 & Supp. 1976) (criticizing the Court's delegation cases).
265. See, e.g., THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES 92-126 (2d ed. 1979) ("Policy without law is clearly constitutional, according to present judicial practice."); KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE §§ 2.01-2.02 (1958 & Supp. 1976) (criticizing the Court's delegation cases).
266. Farina, supra note 203, at 480 (rejecting that assessment).
267. See id. at 487. Farina contends that: [T]he Court's long struggle to reconcile the growth of agencies with the Constitution yielded a solution far more complex than carte blanche for Congress to give agencies whatever power it wishes them to have. The administrative state became constitutionally tenable because the Court's vision of separation of powers evolved from the simple (but constraining) proposition that divided powers must not be commingled, to the more flexible (but far more complicated) proposition that power may be transferred so long as it will be adequately controlled. Id.
268. 5 U.S.C. §§ 551-559, 701-706 (1994). See Sunstein, supra note 116, at 448. Sunstein explained: The conflict resulted in a working compromise in which broad delegations of power were tolerated as long as they were accompanied by extensive procedural safeguards. Those safeguards surrounded the administrative process with some of the trappings of adjudication, provided for an internal separation of agency functions, and allowed regulated industries a variety of ways to challenge administrative decisions. Id. (citing the APA). Professor Sunstein concludes, however, that "the APA seems increasingly inadequate in light of changes in administrative processes and new understandings of agency 'failure.'" Id. He then outlines the ways in which Congress, the Court, and the President have exercised an increasing amount of control over agency discretion and argues that even greater simultaneous control by all three is necessary. See id. at 452-91; see also Strauss, supra note 143, at 579-80. Some commentators, although not arguing that all delegation to administrative agencies should be forbidden, argue that Congress has been abdicating its legislative responsibilities and that the Court should exercise more control by reinvigorating the delegation doctrine. See, e.g., Neuborne, supra note 178, at 52; David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731, 740-41 (1999) [hereinafter Schoenbrod, Delegation and Democracy] ("[W]ith the Supreme Court's blessing, Congress has transformed its responsibility for the laws from a right of the voters to an option of the legislators."); see also SCHOENBROD, supra note 185, at 181; MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL SIRUCTURE 135-37 (1995). More recently, Professor Sunstein has argued that several nondelegation canons of statutory construction impose important constraints on administrative authority. Such canons, he argues, are a more limited and effective mechanism for ensuring that Congress itself makes important political decisions than is the conventional nondelegation doctrine. See Sunstein, supra note 185, at 1-2.
269. 5 U.S.C. §§ 551-559, 701-706 (1994). See Sunstein, supra note 116, at 448. Sunstein explained: The conflict resulted in a working compromise in which broad delegations of power were tolerated as long as they were accompanied by extensive procedural safeguards. Those safeguards surrounded the administrative process with some of the trappings of adjudication, provided for an internal separation of agency functions, and allowed regulated industries a variety of ways to challenge administrative decisions. Id. (citing the APA). Professor Sunstein concludes, however, that "the APA seems increasingly inadequate in light of changes in administrative processes and new understandings of agency 'failure.'" Id. He then outlines the ways in which Congress, the Court, and the President have exercised an increasing amount of control over agency discretion and argues that even greater simultaneous control by all three is necessary. See id. at 452-91; see also Strauss, supra note 143, at 579-80. Some commentators, although not arguing that all delegation to administrative agencies should be forbidden, argue that Congress has been abdicating its legislative responsibilities and that the Court should exercise more control by reinvigorating the delegation doctrine. See, e.g., Neuborne, supra note 178, at 52; David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731, 740-41 (1999) [hereinafter Schoenbrod, Delegation and Democracy] ("[W]ith the Supreme Court's blessing, Congress has transformed its responsibility for the laws from a right of the voters to an option of the legislators."); see also SCHOENBROD, supra note 185, at 181; MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL SIRUCTURE 135-37 (1995). More recently, Professor Sunstein has argued that several nondelegation canons of statutory construction impose important constraints on administrative authority. Such canons, he argues, are a more limited and effective mechanism for ensuring that Congress itself makes important political decisions than is the conventional nondelegation doctrine. See Sunstein, supra note 185, at 1-2.
270. 5 U.S.C. §§ 551-559, 701-706 (1994). See Sunstein, supra note 116, at 448. Sunstein explained: The conflict resulted in a working compromise in which broad delegations of power were tolerated as long as they were accompanied by extensive procedural safeguards. Those safeguards surrounded the administrative process with some of the trappings of adjudication, provided for an internal separation of agency functions, and allowed regulated industries a variety of ways to challenge administrative decisions. Id. (citing the APA). Professor Sunstein concludes, however, that "the APA seems increasingly inadequate in light of changes in administrative processes and new understandings of agency 'failure.'" Id. He then outlines the ways in which Congress, the Court, and the President have exercised an increasing amount of control over agency discretion and argues that even greater simultaneous control by all three is necessary. See id. at 452-91; see also Strauss, supra note 143, at 579-80. Some commentators, although not arguing that all delegation to administrative agencies should be forbidden, argue that Congress has been abdicating its legislative responsibilities and that the Court should exercise more control by reinvigorating the delegation doctrine. See, e.g., Neuborne, supra note 178, at 52; David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731, 740-41 (1999) [hereinafter Schoenbrod, Delegation and Democracy] ("[W]ith the Supreme Court's blessing, Congress has transformed its responsibility for the laws from a right of the voters to an option of the legislators."); see also SCHOENBROD, supra note 185, at 181; MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL SIRUCTURE 135-37 (1995). More recently, Professor Sunstein has argued that several nondelegation canons of statutory construction impose important constraints on administrative authority. Such canons, he argues, are a more limited and effective mechanism for ensuring that Congress itself makes important political decisions than is the conventional nondelegation doctrine. See Sunstein, supra note 185, at 1-2.
271. See 5 U.S.C. § 553(b)-(c) (1994 & Supp. IV 1999). In addition, in the Congressional Review Act of 1996, 5 U.S.C. §§ 801-808, Congress extended report-and-wait provisions, similar to those in the REA, 28 U.S.C. § 2074 (1994), to the promulgation of virtually all regulations by federal agencies.
272. See 5 U.S.C. § 554(d) (excluding prosecuting and investigative administrators from participation in agency decisions).
273. See 5 U.S.C. § 706 (setting out scope of judicial review). See also Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 430-31 (admitting that judicial review of agency decisions is sometimes denied, but explaining that this occurs generally only when the agency is exercising executive power and arguing that these limits on judicial review are required by separation of powers principle).
274. Sunstein, supra note 185, at 2, 15.
275. One should not read the decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), as suggesting that the courts should defer to an administrator's determination of its own authority under a delegating statute, or of the basic policy of the act, as such a reading is contrary to the principle of separation of powers. See Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 1011-12 (1999); see also Sunstein, supra note 116, at 467; Farina, supra note 203, at 467-78. Furthermore, the "nondelegation canons of construction" employed by the courts, and described by Professor Sunstein, serve to limit the prodelegation Chevron doctrine. Sunstein, supra note 185, at 15.
276. See STEPHEN J. WAYNE, THE LEGISLATIVE PRESIDENCY 7 (1978) (arguing that "the original [constitutional] design was intended to give Congress the legislative authority that was, in fact, the power to determine national policy"); see also Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 684-85 (1980) (The Benzene Case) (Rehnquist, J., concurring) (explaining that the Occupational Safety and Health Act should be struck down on nondelegation grounds, and distinguished between "core" legislative functions, or "hard policy choices," which are non-delegable, and other, delegable, legislative functions); cf. Sunstein, supra note 185, at 22-23 (arguing that there may be no constitutional prohibition against delegation of policy decisions, but that a "core structural commitment of the Constitution" is that Congress itself make the decision and, therefore, there is a presumption against reading statutes to grant broad delegations).
277. 2 U.S.C. §§ 691, 691e(4) (1994 & Supp. IV 1999).
278. 118 S. Ct. 2091 (1998).
279. Id. at 2107.
280. Id. at 2108.
281. Id. at 2125, 2127 (Breyer, J., dissenting); see also Prakash, supra note 32, at 16-17 (arguing that the requirement that there be a reduction in the federal deficit was an intelligible principle).
282. See Courtney Worcester, Note, An Abdication of Responsibility and a Violation of a Finely Wrought Procedure: The Supreme Court Vetoes the Line Item Veto Act of 1996, 78 B.U.L. REV. 1583, 1597-98 (1998).
283. See supra Part III.C.
284. See Clinton, 118 S. Ct. at 2127-28 (Breyer, J., dissenting) ("I must recognize that there are important differences between the delegation before us and other broad, constitutionally-acceptable delegations to Executive Branch agencies - differences that argue against my conclusion.").
285. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (finding that the President's decision whether or not to transmit census report to Congress was not agency action subject to review under the APA "[o]ut of respect for the separation of powers and the unique constitutional position of the President"); see also Clinton, 118 S. Ct. at 2128 (Breyer, J., dissenting) ("[T]his Court has made clear that judicial review is less appropriate when the President's own discretion, rather than that of an agency, is at stake."); Dalton v. Specter, 511 U.S. 462, 477 (1994) (holding there could be no judicial review of the President's decision within his discretion granted by the Defense Base Closure and Realignment Act of 1990). Professor Garrett has argued that judicial review of a cancellation by the President could be available when a person affected by a cancellation challenged an agency's decision not to spend money or not to allow a tax provision. See Garrett, supra note 24, at 884 n.59. Any such challenge, however, could only go to the issue of whether the President was acting within the discretion granted to him; there is no principled basis on which to assess the propriety of the reasons given. At most, only a procedural, not a substantive, review of his decision is available.
286. Clinton, 118 S. Ct. at 2128 (Breyer, J., dissenting); cf. Hamilton, supra note 52, at 820-21 (arguing that "[f]rom a constitutional, structural perspective, delegation to agencies is even worse that delegation to the President" because "[t]he President is checked to some degree by the voting booth and public opinion, but the administrative agency suffers little deterrence from either").
287. 467 U.S. 837 (1984).
288. See Appellant's Brief at 38, Clinton (No. 97-1374) (citing Chevron, 467 U.S. at 865).
289. See Appellant's Brief at 38, Clinton (No. 97-1374) (citing Chevron, 467 U.S. at 865).
290. Chevron, 467 U.S. at 865.
291. See id. at 865-66.
292. See id.
293. See id.
294. See id.
295. Id. at 865.
296. See Garrett, supra note 24, at 889-90.
297. Accord Lessig, supra note 5, at 1662-63.
298. Chevron, 467 U.S. at 843-44 (citing Morton v. Ruiz, 415 U.S. 199, 231 (1974) ("The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.").
299. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 46-47 (1966) (citing statements of Edmund Randolph and James Wilson); see also Sunstein, supra note 185, at 8 ("[T]he nondelegation doctrine should be associated less with accountability in the abstract than with the particular constitutional goal of ensuring a deliberative democracy, one that involves not only accountability but also certain forms of bargaining and above all reflectiveness." (citations omitted)).
300. See supra Part III.C.
301. Clinton v. City of New York, 118 S. Ct. 2091, 2116 (Scalia, J., dissenting).
302. See supra notes 211-213 and accompanying text.
303. Clinton, 118 S. Ct. at 2128 (Breyer, J., dissenting) (citing 1 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 3.15 (2d ed. 1978)).
304. Clinton, 118 S. Ct. at 2128 (Breyer, J., dissenting) (citing 1 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 3.15 (2d ed. 1978)).
305. See supra note 214 and accompanying text.
306. See 1 DAVIS, supra note 242; see also Shapiro & Levy, supra note 213, at 425-28 (arguing that the adequate reasons requirement represents a heightened scrutiny of review necessitated by broad delegations to administrative agencies and separation of powers concerns).
307. See supra notes 71-74 and accompanying text.
308. For the same reasons, it would be equally difficult for Congress to agree that a particular provision is not subject to presidential cancellation, and thus the Act's provision for such an exemption also does not provide an adequate control. Although the sunset provision, under which the LIVA was to expire by January 1, 2005, did provide a check of sorts, it provided no controls on the President's exercise of the cancellation authority while the LIVA was in effect. See 2 U.S.C. § 691 (1994 & Supp. IV 1999) (Effective and Termination Dates note).
309. See Gerhardt, supra note 59, at 240-41.
310. See Appellant's Brief at 35 n.20, Clinton v. City of New York, 118 S. Ct. 2091 (1998) (No. 97-1374) (citing INS v. Chadha, 462 U.S. 919, 954-55, 958 (1983)).
311. See id.
312. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).
313. 143 U.S. 649 (1892).
314. Id. at 692-94.
315. See Clinton, 118 S. Ct. at 2106; see also Lessig, supra note 5, at 1662-63.
316. Clinton, 118 S. Ct. at 2130 (Breyer, J., dissenting).
317. See id.
318. In his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Jackson stated: When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . . If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. Id. at 635-37 (Jackson, J., concurring). One should not take the quoted language to stand for the proposition that Congress may delegate to the President any powers it wishes. Rather, Justice Jackson is arguing that in areas in which the President has a degree of inherent authority in the absence of a congressional delegation, such as foreign affairs or an emergency authority, a congressional grant of authority augments that power. See Monaghan, supra note 131, at 37 & n.174.
319. See Clinton, 118 S. Ct. at 2119-20 (Breyer, J., dissenting). Professor Sunstein has described this hands-off approach to separation of powers issues as "Holmesian." Sunstein, supra note 116, at 494-95.
320. See Garrett, supra note 24, at 883 (arguing that Congress' instinct for self-preservation will provide a safeguard against delegations that result in too much concentration of governmental power in the other branches).
321. Cf. Neuborne, supra note 178, at 49 (observing that "rarely has a legislative body been more bent on avoiding responsibility, assuring reelection, and passing all controversial decisions on to someone else"); Schoenbrod, Delegation and Democracy, supra note 210, at 739 (noting that "legislators react to responsibility as vampires do to garlic-they flee").
322. 142 CONG. REC. 6503 (1996). Another supporter of the Act, Senator Kyl, admitted that "there is a great deal of power being given to the President." 141 CONG. REC. 8874 (1995).
323. 141 CONG. REC. 8939 (1995).
324. See Clinton, 118 S. Ct. at 2109 (Kennedy, J., concurring) ("That a congressional cession of power is voluntary does not make it innocuous.").
325. Cf. Richard J. Pierce, Jr., Separation of Powers and the Limits of Independence, 30 WM. & MARY L. REV. 365, 372 (1989) (arguing that there is no threat to the people in vesting considerable policymaking discretion in the President because they choose the President based on their preferences for his policies, an idea supported by Chevron). For a discussion of the limits of this aspect of Chevron, see supra text accompanying notes 227-38.
326. See U.S. CONST. art. II, § 3.
327. See U.S. CONST. art. I, § 7, cl. 2. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (characterizing the presidential veto as a legislative power).
328. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936). The decision in Curtiss-Wright has been criticized for its statement that the foreign relations power is "extra-constitutional." See Monaghan, supra note 131, at 47-56 (discussing historical origins of President's special authority in foreign affairs). As Professor Monaghan states, however, "from the beginning, virtually everyone recognized that in foreign affairs the President enjoys a freedom of movement and authority quite different from that in the domestic realm." Id. at 47-48. The President may also have some limited inherent authority to act in the absence of congressional provision during an emergency and, Professor Monaghan argues, "to protect and defend the personnel, property, and instrumentalities of the United States from harm." Id. at 11.
329. See Monaghan, supra note 131, at 39-40, 46-47.
330. See Clinton v. City of New York, 118 S. Ct. 2091, 2106 (1998) (citing Curtiss-Wright, 299 U.S. at 320).
331. Cf. Roy E. Brownell II, Comment, The Unnecessary Demise of the Line Item Veto Act: The Clinton Administration's Costly Failure to Seek Acknowledgement of "National Security Rescission" 47 AM. U. L. REV. 1273, 1305-07 (1998) (arguing that cancellations under the LIVA that were related to national security concerns could have been more easily defensible, as the President has greater inherent authority in national security affairs than in domestic affairs, particularly national security impoundment).
332. See generally Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 YALE L.J. 1636, 1648-49 (1973) (arguing that appropriation statutes often have been interpreted as delaying impoundment authority, even in the absence of specific delaying language). See also GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 452-53 (3d ed. 1986). A general inherent impoundment power would seem contrary to the Take Care Clause. See U.S. Const. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed."). See also Prakash, supra note 32, at 3 n.12.
333. See generally Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 YALE L.J. 1636, 1648-49 (1973) (arguing that appropriation statutes often have been interpreted as delaying impoundment authority, even in the absence of specific delaying language). See also GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 452-53 (3d ed. 1986). A general inherent impoundment power would seem contrary to the Take Care Clause. See U.S. Const. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed."). See also Prakash, supra note 32, at 3 n.12.
334. 420 U.S. 35 (1975).
335. See id. at 41.
336. Clinton, 118 S. Ct. at 2105 (citing Appellant's Brief at 40, Clinton (No. 97-1374)). The government's argument essentially was that the LIVA was, in effect, an amendment to the Impoundment Control Act of 1974 ("ICA"), 2 U.S.C. §§ 681-688 (1994), which had been enacted to curtail the unilateral impoundments by President Nixon, dubbed the "Mahatma Ghandi of all impounders" by Justice Scalia. Clinton, 118 S. Ct. at 2117 (Scalia, J., dissenting). The ICA set up a scheme whereby no rescissions or permanent impoundment of funds could be made without having been proposed to, and approved by, Congress. See 2 U.S.C. § 683. According to the government, the LIVA simply dispensed with those requirements with respect to certain items. See Appellant's Brief at 6, Clinton (No. 97-1374). The legislative history of the LIVA does provide some support for the government's argument, at least with respect to items of discretionary spending. See Butler, supra note 62, at 25 & n.142; see also Garrett, supra note 24, at 878-82 (arguing that the LIVA is best understood as an amendment to the impoundment provisions of the 1974 Budget Act). The provision of the LIVA permitting the rescission of new items of discretionary spending, however, was not in issue in Clinton. Those provisions that were in issue, new items of direct spending and special tax benefits, are not the type of items that ever were subject to impoundment by the President. See id. at 893 (arguing, nonetheless, that LIVA was valid).
337. Clinton, 118 S. Ct. at 2105 (citing Appellant's Brief at 40, Clinton (No. 97-1374)). The government's argument essentially was that the LIVA was, in effect, an amendment to the Impoundment Control Act of 1974 ("ICA"), 2 U.S.C. §§ 681-688 (1994), which had been enacted to curtail the unilateral impoundments by President Nixon, dubbed the "Mahatma Ghandi of all impounders" by Justice Scalia. Clinton, 118 S. Ct. at 2117 (Scalia, J., dissenting). The ICA set up a scheme whereby no rescissions or permanent impoundment of funds could be made without having been proposed to, and approved by, Congress. See 2 U.S.C. § 683. According to the government, the LIVA simply dispensed with those requirements with respect to certain items. See Appellant's Brief at 6, Clinton (No. 97-1374). The legislative history of the LIVA does provide some support for the government's argument, at least with respect to items of discretionary spending. See Butler, supra note 62, at 25 & n.142; see also Garrett, supra note 24, at 878-82 (arguing that the LIVA is best understood as an amendment to the impoundment provisions of the 1974 Budget Act). The provision of the LIVA permitting the rescission of new items of discretionary spending, however, was not in issue in Clinton. Those provisions that were in issue, new items of direct spending and special tax benefits, are not the type of items that ever were subject to impoundment by the President. See id. at 893 (arguing, nonetheless, that LIVA was valid).
338. Clinton, 118 S. Ct. at 2105 (citing Appellant's Brief at 40, Clinton (No. 97-1374)). The government's argument essentially was that the LIVA was, in effect, an amendment to the Impoundment Control Act of 1974 ("ICA"), 2 U.S.C. §§ 681-688 (1994), which had been enacted to curtail the unilateral impoundments by President Nixon, dubbed the "Mahatma Ghandi of all impounders" by Justice Scalia. Clinton, 118 S. Ct. at 2117 (Scalia, J., dissenting). The ICA set up a scheme whereby no rescissions or permanent impoundment of funds could be made without having been proposed to, and approved by, Congress. See 2 U.S.C. § 683. According to the government, the LIVA simply dispensed with those requirements with respect to certain items. See Appellant's Brief at 6, Clinton (No. 97-1374). The legislative history of the LIVA does provide some support for the government's argument, at least with respect to items of discretionary spending. See Butler, supra note 62, at 25 & n.142; see also Garrett, supra note 24, at 878-82 (arguing that the LIVA is best understood as an amendment to the impoundment provisions of the 1974 Budget Act). The provision of the LIVA permitting the rescission of new items of discretionary spending, however, was not in issue in Clinton. Those provisions that were in issue, new items of direct spending and special tax benefits, are not the type of items that ever were subject to impoundment by the President. See id. at 893 (arguing, nonetheless, that LIVA was valid).
339. Clinton, 118 S. Ct. at 2105 (citing Appellant's Brief at 40, Clinton (No. 97-1374)). The government's argument essentially was that the LIVA was, in effect, an amendment to the Impoundment Control Act of 1974 ("ICA"), 2 U.S.C. §§ 681-688 (1994), which had been enacted to curtail the unilateral impoundments by President Nixon, dubbed the "Mahatma Ghandi of all impounders" by Justice Scalia. Clinton, 118 S. Ct. at 2117 (Scalia, J., dissenting). The ICA set up a scheme whereby no rescissions or permanent impoundment of funds could be made without having been proposed to, and approved by, Congress. See 2 U.S.C. § 683. According to the government, the LIVA simply dispensed with those requirements with respect to certain items. See Appellant's Brief at 6, Clinton (No. 97-1374). The legislative history of the LIVA does provide some support for the government's argument, at least with respect to items of discretionary spending. See Butler, supra note 62, at 25 & n.142; see also Garrett, supra note 24, at 878-82 (arguing that the LIVA is best understood as an amendment to the impoundment provisions of the 1974 Budget Act). The provision of the LIVA permitting the rescission of new items of discretionary spending, however, was not in issue in Clinton. Those provisions that were in issue, new items of direct spending and special tax benefits, are not the type of items that ever were subject to impoundment by the President. See id. at 893 (arguing, nonetheless, that LIVA was valid).
340. See, e.g., The Anti-Deficiency Act, 31 U.S.C. § 1512 (1994). For a discussion of the impoundment features of the Anti-Deficiency Act, see Note, supra note 270, at 1641-44, 1649 n.88, 1650-51.
341. See Clinton, 118 S. Ct. at 2106.
342. Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. §§ 901-22 (1994).
343. See id. § 901(a)(2); see Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 593, 631-32, 644-46 (1988) (discussing how the uniformity requirement in the Gramm-Rudman-Hollings Act limited executive discretion).
344. See Hanna v. Plumer, 380 U.S. 460, 472 (1965). The Court wrote: [T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either. Id.
345. See Kelleher, supra note 41, at 62-68. There is some part of the judiciary's inherent authority over procedure that is absolute and "immune from intrusion by Congress. Thus, for example, Congress may not materially impair the courts' inherent power to sanction for contempt, as that power is indispensable to the courts' ability to function and to the preservation of an independent judiciary." Id. at 65-66 (citations omitted).
346. 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4505 n.61 (2d ed. 1996) ("An excellent example of what might be called 'federal common law of procedure'-that is, judge-made rules of practice and procedure - is remittitur practice.").
347. See, e.g., Hanna, 380 U.S. at 472-73. The Court explained that there are " 'matters which relate to the administration of legal proceedings, an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Rules.'" Id. (quoting Lumbermen's Mut. Cas. Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)); see also Chambers v. Nasco, 501 U.S. 32, 35 (1991) (finding trial court has inherent power to issue sanctions on a party for litigating in bad faith); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980) (recognizing that "in narrowly defined circumstances federal courts have inherent power to assess attorney's fees against counsel"); Landis v. North Am. Co., 299 U.S. 248, 254 (1936) (holding court has inherent power to control docket, including power to stay proceedings in one suit pending determination of another suit); Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530-31 (1824) (finding that the trial court has inherent power to regulate the conduct of lawyers); United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) (noting that certain powers, such as the power to fine for contempt and enforce the observance of order in the court, are powers that are not derived from statute and "cannot be dispensed with in a Court").
348. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
349. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
350. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
351. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
352. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
353. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
354. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
355. Several commentators have argued that federal courts have inherent authority to promulgate prospective rules. See, e.g., Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 600-01 (1926); see also Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015, 1116 (1982) (gathering and critiquing commentary arguing in favor of an inherent power to promulgate procedural rules). Professor Carrington has argued that the Due Process Clause would require the Supreme Court to promulgate prospective rules for federal courts in the absence of an authorizing statute. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L.J. 929, 974-75 (1996). Some commentators have argued that the judicial power to regulate practice and procedure is exclusive and overrides congressional regulation. See Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 11 MINN. L. REV. 1283, 1287 (1993); John H. Wigmore, Editorial Note, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 ILL. L. REV. 276, 276-77 (1929). Other commentators have argued that the judiciary's inherent authority does not include power to make prospective rules and that a delegation from Congress was necessary. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 66, 177 n.231 (1977); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1001 (2d ed. 1987) (listing cites for arguments opposing judicial rulemaking); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS. 102, 107, 109-10 (1976).
356. 28 U.S.C. § 2072(a) (1994).
357. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary and a chief opponent of uniform federal rules, see Hon. Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Redish, supra note 152, at 314-19 (using a formalistic model of separation of powers to call into question the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, and finding congressional delegation irrelevant to the analysis because promulgating generalized rules is essentially a legislative power); cf. Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 ME. L. REV. 41, 57 & n.73 (1988); JACK B. WEINSTEIN, REFORM OF COURT RULE- MAKING PROCEDURES 4-5 (1977). Both argue that: Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national federal rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . - a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. (citations omitted). Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. See id. at 93-94; Whitten, supra, at 62-63.
358. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary and a chief opponent of uniform federal rules, see Hon. Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Redish, supra note 152, at 314-19 (using a formalistic model of separation of powers to call into question the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, and finding congressional delegation irrelevant to the analysis because promulgating generalized rules is essentially a legislative power); cf. Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 ME. L. REV. 41, 57 & n.73 (1988); JACK B. WEINSTEIN, REFORM OF COURT RULE- MAKING PROCEDURES 4-5 (1977). Both argue that: Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national federal rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . - a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. (citations omitted). Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. See id. at 93-94; Whitten, supra, at 62-63.
359. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary and a chief opponent of uniform federal rules, see Hon. Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Redish, supra note 152, at 314-19 (using a formalistic model of separation of powers to call into question the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, and finding congressional delegation irrelevant to the analysis because promulgating generalized rules is essentially a legislative power); cf. Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 ME. L. REV. 41, 57 & n.73 (1988); JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURES 4-5 (1977). Both argue that: Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national federal rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . - a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. (citations omitted). Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. See id. at 93-94; Whitten, supra, at 62-63.
360. 23 U.S. (10 Wheat.) 1 (1825).
361. Id. at 42-43.
362. See Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States."); see also Mistretta v. United States, 488 U.S. 361, 386-88 (1989) (citing Sibbach, 312 U.S. at 9-10, for authority that delegation under REA as an example of a constitutionally permissible delegation to the Court); Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 437-41 (1976) (concluding delegation of REA is valid); Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15, 71-77 (1977) (concluding the delegation of rulemaking authority in the REA is valid, but contesting the validity of the supersession clause). But see Redish, supra note 152, at 316 (arguing that the delegation of rulemaking power is violative of separation of powers concerns and reading Sibbach as not having directly ruling on the validity of the REA under the case-or-controversy requirement).
363. See Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States."); see also Mistretta v. United States, 488 U.S. 361, 386-88 (1989) (citing Sibbach, 312 U.S. at 9-10, for authority that delegation under REA as an example of a constitutionally permissible delegation to the Court); Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 437-41 (1976) (concluding delegation of REA is valid); Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15, 71-77 (1977) (concluding the delegation of rulemaking authority in the REA is valid, but contesting the validity of the supersession clause). But see Redish, supra note 152, at 316 (arguing that the delegation of rulemaking power is violative of separation of powers concerns and reading Sibbach as not having directly ruling on the validity of the REA under the case-or-controversy requirement).
364. See Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States."); see also Mistretta v. United States, 488 U.S. 361, 386-88 (1989) (citing Sibbach, 312 U.S. at 9-10, for authority that delegation under REA as an example of a constitutionally permissible delegation to the Court); Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 437-41 (1976) (concluding delegation of REA is valid); Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15, 71-77 (1977) (concluding the delegation of rulemaking authority in the REA is valid, but contesting the validity of the supersession clause). But see Redish, supra note 152, at 316 (arguing that the delegation of rulemaking power is violative of separation of powers concerns and reading Sibbach as not having directly ruling on the validity of the REA under the case-or-controversy requirement).
365. See Burbank, supra note 282, at 1052-53; Clinton, supra note 287, at 64-77; H.R. REP. No. 99-422, at 16-17 (1985); The Rules Enabling Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the Senate Comm. on the Judiciary, 100th Cong. (1988) [hereinafter Hearing; Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 325; Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1044-45 [hereinafter Burbank, Hold the Corks].
366. See Burbank, supra note 282, at 1052-53; Clinton, supra note 287, at 64-77; H.R. REP. No. 99-422, at 16-17 (1985); The Rules Enabling Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the Senate Comm. on the Judiciary, 100th Cong. (1988) [hereinafter Hearing; Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 325; Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1044-45 [hereinafter Burbank, Hold the Corks].
367. See Burbank, supra note 282, at 1052-53; Clinton, supra note 287, at 64-77; H.R. REP. No. 99-422, at 16-17 (1985); The Rules Enabling Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the Senate Comm. on the Judiciary, 100th Cong. (1988) [hereinafter Hearing; Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 325; Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1044-45 [hereinafter Burbank, Hold the Corks].
368. See Burbank, supra note 282, at 1052-53; Clinton, supra note 287, at 64-77; H.R. REP. No. 99-422, at 16-17 (1985); The Rules Enabling Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the Senate Comm. on the Judiciary, 100th Cong. (1988) [hereinafter Hearing; Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 281, 325; Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1044-45 [hereinafter Burbank, Hold the Corks].
369. 28 U.S.C. § 2072(b). The 1934 REA's supersession provision was substantially the same: "[The rules] shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect." Act of June 19,1934, ch. 651, § 1, Pub. L. No. 73-415, 48 Stat. 1064 (codified as amended at 28 U.S.C. § 2072(b) (1994)).
370. See supra note 35 and accompanying text.
371. See H.R. REP. No. 99-422, at 16 (1985) (citing Burbank, supra note 282, at 1050-54).
372. See Burbank, supra note 282, at 1052-53; Clinton, supra note 287, at 65; see also H.R. REP. No. 99-422, at 16 (1985) (citing Burbank, supra note 282, at 1050-54).
373. See Burbank, supra note 282, at 1053.
374. See H.R. REP. No. 99-422, at 16-17.
375. See INS v. Chadha, 462 U.S. 919, 957-58 (1983) ("To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded.").
376. See Hearing, supra note 288, at 48 (statement of Robert E. Richardson for Alliance for Justice); Clinton, supra note 287, at 77; Burbank, supra note 282, at 1045.
377. See H.R. REP. No. 99-422, at 16-17; see also Hearing, supra note 288, at 34 (statement of Prof. Stephen Burbank, Professor of Law, Univ. of Pa.).
378. H.R. REP. No. 99-422, at 17.
379. See id. at 23.
380. See id.
381. Id. at 22 (citation omitted).
382. See H.R. REP. No. 100-889, pt. 1, at 29 (1988). The Committee stated: [S]ection 101 of the bill before the House, in proposed 28 U.S.C. 2072(b)(3), provides that a rule promulgated under 28 U.S.C. 2072 supersedes a rule of practice or procedure or evidence, or a part of a rule, enacted by Act of Congress after the date of enactment of the legislation. Thus, any Congressional-enacted rule of practice or procedure or evidence can be modified through the Rules Enabling Act process. An enacted provision dealing with practice or procedure or evidence that is not embodied in a rule of practice or procedure or evidence, however, cannot be modified through the Rules Enabling Act process. Such a provision can only be modified by a later enactment. Id.
383. See 134 CONG. REC. 31,864 (1988).
384. See Hearing, supra note 288.
385. See 134 CONG. REC. 31,052 (1988).
386. See Carrington, supra note 288, at 281-82 (discussing the history of the 1988 amendments to the REA); Burbank, Hold the Corks, supra note 288, at 1037-38;
387. Karen Nelson Moore, The Supreme Court's Role in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1050-53 (1993).
388. See, e.g., Palermo v. United States, 360 U.S. 343, 353 n.11 (1959) ("The power of this Court to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress."); see also Clinton, supra note 287, at 72-73 (noting that the Court, in the slip opinion and advance sheets for Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974), proclaimed, "[w]e do not doubt that were there an actual conflict between [a statute] and [a Rule] the statute would control," but that these words are absent from the bound version) (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters, No. 72-1566, slip op. at 11 (U.S. 1974)).
389. See Henderson v. United States, 517 U.S. 654 (1996). In Henderson, the supersession issue was not squarely presented, as the Rule in question had been enacted by Congress. The Court, however, appeared to assume the validity of that provision, when it noted that "[a]s the United States acknowledges . . . a Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes." Id. at 1646; cf. Davis v. United States, 411 U.S. 233, 241-42 (1973) (noting that a supersession provision for the Federal Rules of Criminal Procedure would result in the repeal of a statute by a later enacted rule, but then explaining that the supersession issue was a "difficult question" the Court need not face in that case); Sibbach v. Wilson & Co., 312 U.S 1, 9-10 (1941) (stating first that Congress may delegate to the courts "authority to make rules not inconsistent with the statutes or constitution of the United States" and then that "the rules, if they are within the authority granted by Congress, repeal [the Conformity Act]").
390. Clinton v. City of New York, 118 S. Ct. 2091, 2107 n.40 (1998).
391. Id.
392. Congress has specifically precluded amendment by Court-promulgated Federal Rules of Evidence concerning evidentiary privileges. See 28 U.S.C. § 2074(b) (1994) (stating that any Court-made Rule "creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress").
393. Cf. Mistretta v. United States, 488 U.S. 361, 364-65, 384 (1989) (upholding Sentencing Commission Act on the grounds, inter alia, that it did not aggrandize the judicial branch, which historically had control over sentencing). The Sentencing Commission, however, creates a much more serious separation of powers problem, as sentencing so clearly and necessarily implicates policy. Although the Mistretta Court was correct that the judicial branch already had some authority over sentencing, and in that respect had some policymaking authority in the area, it was as a matter of interstitial lawmaking, delegated by Congress, and to be exercised solely in cases and controversies. This judicial authority over sentencing in particular cases is one aspect of the judiciary's policymaking role, which is confined to the articulation of common law and subject to the control of Congress. The authority to promulgate prospective rules for sentencing, to be applied in future proceedings, does not appear to be inherent in the judicial branch. The argument that authority to make prospective procedural rules may be delegated to the Court is much more easily made because such rules do not implicate primary policy decisions and because procedure is so fundamental to the working of the court. See supra notes 279-287 and accompanying text.
394. 28 U.S.C. § 2072(b).
395. 28 U.S.C. § 2074(a).
396. Carrington, supra note 288, at 325. But see Burbank, Hold the Corks, supra note 288, at 1044 ("As originally formulated, the supersession clause was intended to 'clear . . . undergrowth', although it was by no means limited to 'procedural marginalia'. Nor is it so limited today." (citations omitted)).
397. See, e.g., Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941); Burlington N. R.R. v. Woods, 480 U.S. 1, 5 (1987). See generally Kelleher, supra note 41, at 95-100.
398. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in Its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Burbank, Hold the Corks, supra note 288, at 1041.
399. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in Its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Burbank, Hold the Corks, supra note 288, at 1041.
400. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in Its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Burbank, Hold the Corks, supra note 288, at 1041.
401. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in Its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Burbank, Hold the Corks, supra note 288, at 1041.
402. See Burbank, Hold the Corks, supra note 288, at 1036-37, 1046 (arguing that if the Court had promulgated amendments to Rule 68 that had been proposed in 1983 and 1984, and which appeared to transgress the "substantive rights" limitations of the REA, the Court then would have found the Rule to supersede conflicting statutes governing attorney's fees).
403. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) ("'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'" (citation omitted)).
404. See Kelleher, supra note 41, at 108-21.
405. See id. at 105-08.
406. See H.R. REP. No. 99-422, at 6-7 (1985).
407. For a similar argument based on a separation of powers analysis of which procedural matters are subject to Congress's sole control, see Whitten, supra note 284, at 55-56.
408. Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C.).
409. See The Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96 Stat. 2527 (1983) (prior to 1993 amendment). In April 1982, the Supreme Court transmitted to Congress proposed amendments to Rule 4 intended to reduce the role of federal marshals in effecting service of civil process, to place control over service in the hands of plaintiffs, and to permit service by mail as a form of federal service. See 456 U.S. 1014 (letter of transmittal to Congress, Apr. 3, 1982); Amendments to Rules, 93 F.R.D. 255, 262 (1982). Congress delayed the effectiveness of the amendments because of concerns that the provisions for mail service were flawed. Congress then enacted its own version of Rule 4, which was substantially similar to the Court's proposal, but corrected its perceived flaws. For a discussion of the history of the 1983 amendments to Rule 4, see Kent Sinclair, Service of Process: Rethinking the Theory and Procedure of Serving Process Under Federal Rule 4(c), 73 VA. L. REV. 1183, 1197-212 (1987).
410. See The Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96 Stat. 2527 (1983) (prior to 1993 amendment). In April 1982, the Supreme Court transmitted to Congress proposed amendments to Rule 4 intended to reduce the role of federal marshals in effecting service of civil process, to place control over service in the hands of plaintiffs, and to permit service by mail as a form of federal service. See 456 U.S. 1014 (letter of transmittal to Congress, Apr. 3, 1982); Amendments to Rules, 93 F.R.D. 255, 262 (1982). Congress delayed the effectiveness of the amendments because of concerns that the provisions for mail service were flawed. Congress then enacted its own version of Rule 4, which was substantially similar to the Court's proposal, but corrected its perceived flaws. For a discussion of the history of the 1983 amendments to Rule 4, see Kent Sinclair, Service of Process: Rethinking the Theory and Procedure of Serving Process Under Federal Rule 4(c), 73 VA. L. REV. 1183, 1197-212 (1987).
411. See The Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L. No. 97-462, 96 Stat. 2527 (1983) (prior to 1993 amendment). In April 1982, the Supreme Court transmitted to Congress proposed amendments to Rule 4 intended to reduce the role of federal marshals in effecting service of civil process, to place control over service in the hands of plaintiffs, and to permit service by mail as a form of federal service. See 456 U.S. 1014 (letter of transmittal to Congress, Apr. 3, 1982); Amendments to Rules, 93 F.R.D. 255, 262 (1982). Congress delayed the effectiveness of the amendments because of concerns that the provisions for mail service were flawed. Congress then enacted its own version of Rule 4, which was substantially similar to the Court's proposal, but corrected its perceived flaws. For a discussion of the history of the 1983 amendments to Rule 4, see Kent Sinclair, Service of Process: Rethinking the Theory and Procedure of Serving Process Under Federal Rule 4(c), 73 VA. L. REV. 1183, 1197-212 (1987).
412. See Carrington, supra note 288, at 325.
413. Justices Black and Douglas urged that the Court be relieved of any role in the rulemaking process, arguing that the "transfer of the function to the Judicial Conference would relieve us of the embarrassment of having to sit in judgment on the constitutionality of rules which we have approved and which as applied in given situations might have to be declared invalid." 374 U.S. 865, 870 (order of the Supreme Court, Jan. 21, 1963) (statement of Mr. Justice Black and Mr. Justice Douglas in opposition).
414. Just before his retirement from the Court, Justice White observed that: "[T]he Court's role [in the rulemaking process] . . . is to transmit the Judicial Conference's recommendations without change and without careful study . . . ." Amendments to the Federal Rules of Civil Procedure, 146 F.R.D. 402, 505 (1993) (Statement of Justice White). For a discussion of the Supreme Court's role in the rulemaking process, see Moore, supra note 306, at 1061-72.
415. 380 U.S. 460 (1965).
416. See id. at 471.
417. Kelleher, supra note 41, at 105-08.
418. 500 U.S. 90 (1991).
419. Id. at 96-97.
420. 521 U.S. 591 (1997).
421. Id. at 612-13.
422. 28 U.S.C. § 2074(a) (1994).
423. See id.
424. See Carrington & Apanovitch, supra note 317, at 484-85; Kelleher, supra note 41, at 99-100; Paul J. Mishkin, Some Further Last Words on Erie-The Thread, 87 HARV. L. REV. 1682, 1687 (1974) ("One important aspect of the fallacy [of the conclusion that congressional inaction is an approval of the Rules] may be perceived from the fact that Congress will be deemed to have failed to act even if both Houses have passed specific bills so long as the two have not adopted identical language.").
425. Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9. The purpose of the Act, "[t]o promote the separation of constitutional powers," indicates Congress's concern that the Court had overstepped its constitutional and rulemaking authority. Id.
426. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926. For a detailed account of Congress's intervention in the rulemaking process, and redrafting of the evidence rules, see 21 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE: § 5006 (1977).
427. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926. For a detailed account of Congress's intervention in the rulemaking process, and redrafting of the evidence rules, see 21 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE: § 5006 (1977).
428. See 28 U.S.C. § 2074(b).
429. Statutes affecting the Federal Rules of Evidence and the Federal Rules of Civil Procedure up to 1985 are listed in a 1985 House committee report accompanying a bill that was a precursor to the 1988 bill amending the REA. See H.R. REP. No. 99-422, at 8 n.20 (1985). A more recent example is the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320,935(a), 108 Stat. 1796, 2135-37 (1994) (amending Federal Rules of Evidence by adding Rules 413-15, which provide limits on the admissibility of evidence concerning the history of victims of sexual assault).
430. See Kelleher, supra note 41, at 51-54.
431. See 28 U.S.C. §§ 2073-2074 (1994). Further public involvement in rulemaking was introduced by the Civil Justice Reform Act of 1990 ("CJRA"), 28 U.S.C. §§ 471-482 (1994), which requires each district to create an advisory committee comprised of attorneys and litigants to assist in formulating local plans to make litigation more efficient. See Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375, 379 (1992) (criticizing Congress for the CJRA for taking "procedural rulemaking power away from judges and their expert advisors and delegat[ing] it to local lawyers").
432. See, e.g., Carrington & Apanovitch, supra note 317, at 474-93; Moore, supra note 306, at 1053-61 (arguing that "Congress's involvement in the process of amending Rules has been troubling" because of the disregard for the rulemaking process established by the REA and because, in at least one instance, a congressional amendment was "a political response to the pressures of a discrete interest group rather than a carefully crafted response to procedural inadequacies of the prior Rule"); Mullenix, supra note 344, at 382. See also Laurens Walker, The End of the New Deal and the Federal Rules of Civil Procedure, 82 IOWA L. REV. 1269,1281-86 (1997) (pointing to the end of the New Deal and the concomitant loss of congressional faith in administrative expertise and centralization as a general explanation for Congress's increased involvement in procedural rulemaking).
433. See Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT. L. REV. 965, 983 (1997).