Deviant executive lawmaking

George Washington Law Review

Volumn 67, Issue 1, 1998, Pages 1-49

  Prakash, Saikrishna Bangalore ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 33750235699     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (307)

1. Line Item Veto Act, Pub. L. No. 104-130, 110 Stat. 1200 (1996) (codified at 2 U.S.C. §§ 681, 691-692 (Supp. II 1997)) (declared unconstitutional by Clinton v. City of New York, 118 S. Ct. 2091 (1998)).
2. 142 CONG. REC. S2955 (1996) (statement of Sen. Stevens).
3. Id. at S2978 (statement of Sen. Kyl).
4. See 2 U.S.C. § 691 (Act effective January 1, 1997).
5. See, e.g., Cancellation Nos. 97-1 to -2, 62 Fed. Reg. 43,265 (1997) (canceling two limited tax benefits contained in the Taxpayer Relief Act of 1997).
6. See, e.g., Cancellation No. 97-3, 62 Fed. Reg. 43,263 (1997) (canceling a new direct spending provision relating to Medicaid contained in the Balanced Budget Act of 1997).
7. See, e.g., Cancellation Nos. 97-4 to -41, 62 Fed. Reg. 52,452 (1997) (canceling thirty-eight dollar amounts of discretionary budget authority contained in the Military Construction Appropriations Act of 1998).
8. See Alan Fram, Veto Power Vetoed: Judge Throws out Line-Item Measure, CHATTANOOGA TIMES, Feb. 13, 1998, at A1.
9. H.R. CONF. REP. NO. 104-491, at 15 (1996),
10. reprinted in 1996 U.S.C.C.A.N. 892, 892. The Act was not the first congressional attempt to cede increased control over appropriations to the President. The Impoundment Control Act of 1974, 2 U.S.C. §§ 681-688 (1994), authorizes two types of presidential "impoundments": deferrals and rescissions of budget authority. "Deferrals" affect the timing of expenditures and result from "withholding or delaying the obligation or expenditure of budget authority . . . provided for projects or activities." Id. § 682(1). Absent congressional approval, however, the President may not defer budget authority beyond the fiscal year in which he proposed the deferral. See id. § 684(a). "Rescissions" are proposed cancellations of budget authority. If within forty-five days of the President's proposed rescindment, Congress does not ratify the proposal via a rescission bill, the funds must be expended. See id. § 683(a)-(b). Deferrals and rescissions essentially amount to presidential pleas for legislative action.
11. Under the Act, "cancel" meant "to rescind" or to prevent provisions of law "from having legal force or effect." 2 U.S.C. § 691e(4) (Supp. II 1997). One could label the President's action a cancellation, a repeal, or a rescindment because all three words characterize an action that precludes the provision at issue from having at least some future legal effects. Accordingly, this Article uses the three terms interchangeably. But see infra note 210 (discussing Justice Breyer's contention that cancellations were not really repeals at all).
12. 2 U.S.C. § 691(a)(1)-(3).
13. Id. § 691(a)(A)-(B). The authority to "cancel" extant statutory provisions is different from both executive impoundment and a true line item veto. Impoundments are unilateral executive decisions to withhold funds in the face of mandatory appropriations statutes. See Louis Fisher, The Politics of Impounded Funds, 15 ADMIN. SCI. Q. 361, 361 (1970).
14. Cancellation power of the type found in the Act, however, results from bilateral decisions (by Congress and the President) that can make appropriations "optional" in some sense and, more significantly, can extend beyond appropriations to other types of laws. A true line item veto differs from the Act's cancellation authority in that a true line item veto would permit the President to alter a bill before signing it into law. See Thomas O. Sargentich, The Future of the Item Veto, 83 IOWA L. REV. 79, 95 (1997).
15. The Act, and cancellation authority generally, however, permit the President to alter the law after a bill has become the law. See 2 U.S.C. § 691(a). Those who believe in the soundness of unconstrained presidential impoundment of funds should find the presidential cancellation of spending provisions acceptable as well. Because cancellation authority can extend well beyond the appropriations context, however, the propriety of general cancellation authority should be of interest to even defenders of impoundments. For a discussion of the history of presidential impoundments, see Fisher, supra. For a critique of executive impoundments, see David A. Martin, Note, Protecting the Fisc: Executive Impoundment and Congressional Power, 82 YALE L.J. 1636 (1973).
16. Likewise, even those who insist that the President may selectively veto items in legislation that Congress presents to him (a true and inherent line item veto), see Stephen Glazier, The Line-Item Veto: Provided in the Constitution and Traditionally Applied, in PORK BARRELS AND PRINCIPLES: THE POLITICS OF THE PRESIDENTIAL VETO 9, 12 (National Legal Ctr. for the Pub. Interest 1988);
17. Douglas W. Kmiec, OLC's Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 CARDOZO L. REV. 337, 353-59 (1993);
18. J. Gregory Sidak & Thomas A. Smith, Four Faces of the Item Veto: A Reply to Tribe and Kurland, 84 NW. U. L. REV. 437, 478-79 (1990),
19. may not believe necessarily that Congress may permit the President to cancel existing laws. The questions are analytically distinct. As general matters, neither impoundment nor a true line item veto seems constitutional. Impoundment of a mandatory appropriation or entitlement program seems to violate the Take Care Clause. See U.S. CONST. art. II, § 3 (stating that the President "shall take care that the Laws be faithfully executed"). Moreover, the text of the Presentment Clause, U.S. CONST. art. I, § 7, cl. 2, precludes the notion that it sanctions the use of a line item veto. See Nelson Lund, Rational Choice at the Office of Legal Counsel, 15 CARDOZO L. REV. 437, 456 n.46 (1993)
20. (arguing that because the Presentment Clause provides that the President must return an entire bill with objections to Congress in order to veto it, the Clause necessarily precludes arguments that the President may return only parts of a bill). For a critique of the line item veto theory generally, see Michael B. Rappaport, The President's Veto and the Constitution, 87 NW. U. L. REV. 735 (1993).
21. 118 S. Ct. 2091 (1998).
22. U.S. CONST. art. I, § 7, cl. 2.
23. See Clinton v. City of New York, 118 S. Ct. at 2103 (claiming that the Constitution implicitly prohibits "unilateral Presidential action that either repeals or amends parts of duly enacted statutes").
24. See id. at 2106-07.
25. I am chagrined to admit that I previously thought that Congress could not cede line item veto authority. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 609 n.274 (1994).
26. Upon reflection, I came to my earlier view too hastily and without sufficient consideration of the many different forms of line item veto power. Despite my affinity for examining constitutional questions from an "originalist" perspective, see, e.g., id. at 546-47, I have not reconstructed the original meanings of the constitutional terms relevant to the question here. Other scholars have attempted to recover the original intentions of the founding generation regarding the line item veto and have come to differing conclusions. Compare Judith A. Best, The Item Veto: Would the Founders Approve?, 14 PRESIDENTIAL STUD. Q. 183, 186 (1984)
27. (contending that the item veto is consistent with the Founders' intent to give the President effective veto power), with Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 WASH. & LEE L. REV. 385, 394 (1992) (claiming that the Framers' intent with respect to a line item veto is unclear). These analyses, however, consider the constitutionality of an inherent item veto, rather than a statutorily granted authority to cancel statutes. To my knowledge, the founding generation did not consider whether Congress could delegate the authority to cancel or modify existing laws.
28. See infra notes 251-252 and accompanying text.
29. Throughout this article, the terms "cancellation authority" and "cancellation delegation" refer to an executive officer's delegated authority to rescind statutory provisions. The terms "lawmaking authority" and "lawmaking delegation" refer to an executive officer's delegated power to create legal rules or standards through the issuance of regulations. "Modification authority" and "modification delegation" refer to an executive officer's delegated authority to modify statutory standards.
30. Because this Article examines the propriety of cancellation delegations generally, it does not address every supposed constitutional difficulty posed by the Act, but only those applicable to cancellation and modification authority generally. Thus, this Article does not maintain that the Act is constitutional in all respects.
31. Assuredly, Congress's ability to delegate has limits. In fact, many scholars argue that the courts should strengthen the nondelegation test. See, e.g., DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY 183 (1993) (arguing that Congress should "state the law" so that statutes, rather than administrative agencies or courts, resolve most cases). Even if the courts heeded the many calls for adding teeth to the nondelegation doctrine, however, cancellation and modification authority would remain delegable in some circumstances. See infra note 121 and accompanying text.
32. Many scholars argued that the Act and cancellation authority generally should be struck down. See Robert C. Byrd, The Control of the Purse and the Line Item Veto Act, 35 HARV. J. ON LEGIS. 297, 331-32 (1998);
33. Michael J. Gerhardt, The Bottom Line on the Line-Item Veto Act of 1996, 6 CORNELL J.L. & PUB. POL'Y 233, 233-34 (1997);
34. Lawrence Lessig, Lessons from a Line Item Veto Law, 47 CASE W. RES. L. REV. 1659, 1659 (1997); Sargentich, supra note 12, at 136-37.
35. But see Michael G. Locklar, Comment, Is the 1996 Line-Item Veto Constitutional?, 34 HOUS. L. REV. 1161, 1190 (1997)
36. (contending that the Act was constitutional). Professor Devins has argued that the Act "embraces a vision of the separation of powers at odds with the constitutional design" but has declined to conclude that the Act was unconstitutional. See Neal E. Devins, In Search of the Lost Chord: Reflections on the 1996 Item Veto Act, 47 CASE W. RES. L. REV. 1605, 1609 & n.16 (1997).
37. Considering the constitutionality of executive repeals in the context of the Line Item Veto Act is particularly perilous. The title of the Act is a liability because it obscures more than it describes. As noted earlier, the Act simply does not delegate true line item veto authority. See supra note 12. Moreover, because the Act's rule of construction applies across many statutes, the Act appears to delegate a great deal of authority. In fact, however, the Act does not cede any authority. It merely facilitates the delegation of cancellation authority. See infra note 30.
38. 2 U.S.C. § 691(a) (Supp. II 1997). One might wonder why Congress structured the Act the way it did. Congress surely could have ceded greater discretion to the President over fiscal matters without authorizing "cancellations." With respect to appropriations, Congress could have granted authority to spend "up to" some dollar limit. Such authority is undoubtedly constitutional. See Clinton v. City of New York, 118 S. Ct. 2091, 2117 (1998) (Scalia, J., concurring in part and dissenting in part). Likewise, Congress might have ceded discretion over tax and entitlement provisions, granting the President the latitude to decline to enforce tax benefits and entitlement changes. The authority to determine spending within a broad range or to decline to enforce entitlement and tax statutes, however, would have been a significantly broader delegation of authority than mere cancellation authority. With cancellation authority, the President faced something approaching an all or nothing choice.
39. See U.S. CONST. art. I, § 7, cl. 2 (stating that when Congress overrides a presidential veto, the legislation becomes law notwithstanding the lack of presidential signature). This feature of the Act prevented a President from vetoing an act and then subsequently canceling its provisions if Congress overrode the veto.
40. Ordinarily, a bill automatically becomes a law if the President does not return the bill to Congress with objections within ten days of its presentment to him. See id.
41. "Budget deficit" refers to the amount by which outlays exceed receipts during a fiscal year. See 2 U.S.C. § 622(6) (1994). "Outlays" refers to "expenditures and net lending of funds under budget authority" for a fiscal year. Id. § 622(1). "Receipts" for a fiscal year generally equal the sum of all tax collections from the public and payments into federal social insurance programs such as Social Security. See ACCOUNTING & FIN. MANAGEMENT DIV., U.S. GEN. ACCOUNTING OFFICE, A GLOSSARY OF TERMS USED IN THE FEDERAL BUDGET PROCESS 27 (rev. ed. 1993).
42. Because there likely would have been budget surpluses for the foreseeable future, see Martin Crutsinger, Forecast Calls for $1.6 Trillion in Surpluses, SAN DIEGO UNION-TRIBUNE, Sept. 7, 1998, at A5, available in 1998 WL 4029808 (claiming that budget surpluses likely will continue for eleven years), the President would not have been able to make the required deficit reduction finding. Thus, he would not have been able to cancel anything in the future.
43. 2 U.S.C. § 691(a)(A)(i)-(iii) (Supp. II 1997).
44. See id. § 691(a)(B).
45. Properly understood, the Act itself delegated nothing. The President could not cancel anything merely because of the Act's passage. He had cancellation authority only when Congress subsequently passed an act containing cancelable items. In other words, the President could use the Act to "interpret" a subsequently enacted statute as sanctioning cancellations of certain provisions, unless that statute provided otherwise. In this way, the Act was a rule of construction in that it colored how to construe future acts of Congress. Cf. BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 487 (1987) ("[A] rule of construction is a guide to the court in interpreting a statute . . . ."). If Congress had wanted to bar cancellations of provisions in a particular bill, it merely had to provide that the President could not cancel any provisions in such bill. See infra notes 275-276 and accompanying text.
46. With respect to discretionary budget authority, see infra Part I.A.1, "cancel" meant "to rescind." 2 U.S.C. § 691e(4)(A). With respect to new direct spending or a limited tax benefit, see infra Parts I.A.2-3, it meant to prevent such items of law "from having legal force or effect." 2 U.S.C. § 691e(4)(B)-(C). As stated earlier, this Article uses the statutory term "cancel" interchangeably with "repeal" and "rescind" because all three terms accurately describe presidential action under the Act. See supra note 10.
47. 2 U.S.C. § 691(a)(1)-(3).
48. See id. § 691e (defining ten terms as used in the Act).
49. id. § 691(a)(1).
50. Id. § 691e(7)(A). Appropriations acts and entitlement statutes make budget authority (the power to incur financial obligations) available to executive officers for use. See 2 U.S.C. § 622(2)(A) (1994). Outlays result from the use of appropriated budget authority. See id. § 622(1). The amount of budget authority appropriated is thus a critical factor in determining outlays. Indeed, Congress does not vote on the outlays of a given year. Rather, outlays depend upon budget authority provided by prior and current year legislation.
51. Perhaps due to the potential constitutional problems with spending more than Congress appropriated, see U.S. CONST., art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ."), the Act did not grant the President a power to supplement an appropriations act. Because the President lacked such statutory authority, he could not have transferred budget authority from one account to another. In practice, however, the Executive Branch may reallocate funds if the congressional committee with jurisdiction approves. See Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 CAL. L. REV. 593, 612-13 (1988).
52. Nor could the President void restrictions on the use of funds. See 2 U.S.C. §691e(7)(B)(iv). Thus, if an appropriations act granted $15 million for medical research, but provided that no funds could be spent on cloning research, the President could not cancel the cloning prohibition and still expend the funds.
53. See id. § 691e(5) (defining "direct spending" as (1) "budget authority provided by law (other than an appropriation law)"; (2) "entitlement authority"; and (3) "the food stamp program").
54. See 2 U.S.C. § 907(b) (1994) (establishing the method for calculating the baseline for direct spending and receipts). "For any budget year, the baseline refers to a projection of current-year levels of new budget authority, outlays, revenues, and the surplus or deficit into the budget year and the outyears based on laws enacted through the applicable date." Id. § 907(a).
55. 2 U.S.C. § 691e(8) (Supp. II 1997).
56. 2 U.S.C. § 907(b)(1)-(2) (1994).
57. As the committee report observed, any provision that increased direct spending was cancelable, whether or not it was part of a larger act that reduced overall direct spending. See H.R. CONF. REP. 104-491, at 36 (1996),
58. reprinted in 1996 U.S.C.C.A.N. 892, 913-14.
59. 2 U.S.C. § 691e(9)(A)-(B).
60. See id. § 691e(9)(A)(ii).
61. See id. § 691f.
62. See id. § 691f(c)(1).
63. See id.
64. See id. § 691f(c)(2).
65. See U.S. CONST. art. I, § 7, cl. 2 (discussing Congress's authority to overcome the President's veto of a bill).
66. Compare 2 U.S.C. § 691(a) (allowing the President to cancel laws after he signed them), with U.S. CONST art. I, § 7, cl. 2 (allowing the President to veto a bill by refusing to sign it and returning it to Congress).
67. The Act defined "disapproval bill" as "a bill or joint resolution which only disapproves one or more cancellations . . . by the President." 2 U.S.C. § 691e(6). The use of the term "bill" suggests that Congress recognized that in disapproving or nullifying a cancellation, Congress would be legislating anew. After all, "bills" must satisfy bicameralism and be presented to the President. See U.S. CONST. art I, § 7, cl. 2.
68. See 2 U.S.C. § 691b(a).
69. See id. § 691e(6).
70. See id. § 691b(a).
71. See id. § 691(c). Congress has enacted only one disapproval bill into law. See Act of Feb. 25, 1998, Pub. L. No. 105-159, 112 Stat. 19 (disapproving the cancellation of thirty-eight military construction items).
72. 2 U.S.C. § 691e(4)(A)-(C).
73. See H.R. CONF. REP. NO. 104-491, at 22-23 (1996),
74. reprinted in 1996 U.S.C.C.A.N. 892, 900-01.
75. Pub. L. No. 99-177, 99 Stat. 1038 (1985) (codified as amended in scattered sections of 2, 31 & 42 U.S.C.).
76. See 2 U.S.C. § 691c(a)(1), (b). Pursuant to Gramm-Rudman-Hollings, there are overall yearly caps placed on so-called discretionary spending. See 2 U.S.C.A. § 901(c) (West Supp. 1998) (setting out the discretionary spending limits for fiscal years 1997-2002); Stith, supra note 36, at 627. When legislation breaches the caps, there is an across-the-board trimming of discretionary spending accounts. See 2 U.S.C. § 901(a) (1994); Stith, supra note 36, at 632-33.
77. See 2 U.S.C. § 691c(a)(2) (Supp. II 1997). Under the pay-as-you-go system, legislation containing new direct spending or limited tax benefits must contain offsetting decreases in direct spending or increases in tax revenues such that the overall impact on the deficit is neutral at worst. See 2 U.S.C. § 902 (1994). Legislation not containing such offsets may trigger a "pay-as-you-go" sequestration. See id. To ensure that savings from cancellations of new direct spending and limited tax benefits went toward deficit reduction, the Act prohibited the use of such cancellations to offset spending increases or revenue decreases in the same bill. See H.R. CONF. REP. NO. 104-491, at 23 (1996),
78. reprinted in 1996 U.S.C.C.A.N. 892, 900-01.
79. When Congress passed a disapproval bill overturning an executive repeal, however, OMB did not make the adjustments discussed above. See 2 U.S.C. § 691c(c).
80. See U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
81. Id. art. I, § 8, cl. 18.
82. See infra Part II.A.
83. See infra Part II.B.
84. See infra Part II.C.
85. See infra Part II.D.
86. U.S. CONST. art. I, § 1.
87. See GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 108 (1998) (stating that no other branch has general legislative power).
88. Article I of the Constitution generally empowers Congress to enact laws, but does not provide explicitly that Congress may delegate such authority to other entities. Specific constitutional authorities relevant to the Line Item Veto Act are no different. See U.S. CONST. art. I, § 8, cl. 1-2 (ceding to Congress the power to raise taxes, expend funds, and issue debt). None of these clauses explicitly permits Congress to delegate these legislative powers to someone else.
89. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 198-99 (1996) (citing importance of several political philosophers to the Framers).
90. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 380 (Peter Laslett ed., 1960) (Second Treatise).
91. BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 151-52 (Thomas Nugent trans., 1949).
92. U.S. CONST. art I, § 8, cl. 18. Some scholars have argued that the Necessary and Proper Clause might be a source for the delegation of discretion. See Peter M. Shane, Conventionalism in Constitutional Interpretation and the Place of Administrative Agencies, 36 AM. U. L. REV. 573, 592 (1987)
93. (claiming that the Necessary and Proper Clause permits Congress to delegate decisions that it could have made itself, but asserting that such decisions do not involve legislative power because they are not "legislative power[s] to which the Constitution refers"); Harold J. Krent, Delegation and Its Discontents, 94 COLUM. L. REV. 710, 736 (1994)
94. (book review) (arguing that the Necessary and Proper Clause authorizes congressional delegation of decisionmaking authority). Moreover, the Supreme Court has suggested that the Necessary and Proper Clause permits the delegation of decisions that the legislature otherwise should have made. See, e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) (citing Necessary and Proper Clause in the course of holding that Congress may delegate creation of "subordinate rules within prescribed limits"); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 22, 43, 46 (1825) (discussing Congress's ability to delegate certain discretion to the federal judiciary under the Necessary and Proper Clause). One cannot assert that the Necessary and Proper Clause grants Congress the power to delegate legislative authority or discretion without some trepidation. Many courts and scholars play the Clause as a constitutional "Joker" to trump all limitations on federal authority. Cf. Randy E. Barnett, Necessary and Proper, 44 UCLA L. REV. 745, 762-63 (1997)
95. (contending that Justice Marshall's erroneous conception of "necessary" has been used to eviscerate the concept of limited and enumerated federal powers); Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 285 (1993)
96. (describing as "assuredly mistaken" the view that Congress has unlimited power under the Necessary and Proper Clause). Nonetheless, the Clause is undoubtedly a source of legislative power - it is found in Article I, Section 8 - and, more importantly, is the only possible authority for the delegation of discretion. If the power to delegate discretion has a textual basis, it is the Necessary and Proper Clause. See Gary Lawson, Who Legislates?, PUB. INTEREST L. REV. 147, 150 (1995) (book review).
97. U.S. CONST. art I, § 8, cl. 18.
98. Under the Constitution, Congress has the power "[t]o promote the Progress of Science . . . by securing for limited Times to Inventors the exclusive Right to their respective . . . Discoveries." Id. art. I, § 8, cl. 8.
99. The Constitution grants Congress the power to "coin Money [and] regulate the Value thereof." Id. art. I, § 8, cl. 5.
100. To be sure, Congress sometimes cannot draft more specific statutes. For instance, Congress may not selectively punish individuals. See id. art. I, § 9, cl. 3 (prohibiting bills of attainder). Likewise, Congress may not statutorily appoint executive and judicial officers. See id. art. II, § 2, cl. 2 (giving the President the power to appoint executive and judicial officers whose appointments "shall be established by Law"). In these areas, the President enjoys a sphere of autonomy that Congress may not invade. To the extent the President enjoys other exclusive spheres of autonomy, one might believe that Congress must legislate up to that sphere in order to avoid a delegation of discretion or legislative authority. Speculating about the existence of such an inviolable executive sphere is unnecessary given that most statutes contain some discretion that Congress could eliminate (at least partially) through increased statutory specificity.
101. Lawson and Granger have argued that "virtually all federal laws" rely upon the Necessary and Proper Clause (the "Sweeping Clause") because most laws do not merely regulate conduct pursuant to Article I, Section 8, Clauses 1-17, but also provide penalties and institutions to carry congressional power "into [e]xecution." Lawson & Granger, supra note 74, at 324. If almost every statute contains a delegation of discretion, Lawson and Granger's argument that most federal laws rely on the Necessary and Proper Clause is correct for another reason. In other words, the Clause justifies most laws both because most laws contain delegated discretion and because most laws provide penalties and magisterial institutions to execute the laws.
102. This view of statutes might find some support in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Court held that where a statute contains some ambiguity, yet has no explicit delegation of authority, the statute contains an implicit delegation of gap-filling authority to the agency. See id. at 843-44. Because statutes almost always contain some level of ambiguity, Congress almost always delegates discretion.
103. But see Lawson & Granger, supra note 74, at 308 (discussing Andrew Jackson's claim that Congress could not, under Necessary and Proper Clause, delegate to the Bank of the United States the power to coin money).
104. See Mistretta v. United States, 488 U.S. 361, 372 (1989). This theory of delegated discretion is consistent with Justice Scalia's common sense discussion in Mistretta: "A certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine - up to a point - how small or how large that degree shall be." Id. at 417 (Scalia, J. dissenting); see also id. at 415 (Scalia, J., dissenting) (admitting that it must be conceded that "some judgments involving policy considerations[ ] must be left to the officers executing the law . . . , [thus turning] the debate over unconstitutional delegation [into] a debate not over a point of principle but over a question of degree").
105. See supra notes 72-73 and accompanying text.
106. THE FEDERALIST NO. 47, at 301-03 (James Madison) (Clinton Rossiter ed., 1961).
107. See id. at 303.
108. See id. at 301, 308.
109. See U.S. CONST. art. II, § 3.
110. See id. art. I, § 7, cl. 2.
111. See id. art. II, § 3.
112. See id. art. II, § 2, cl. 2.
113. THE FEDERALIST NO. 66, at 401-02 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis added).
114. One can reconcile John Locke's claim about the nondelegability of the power to make laws with the reality of delegated discretion, see supra note 72 and accompanying text, if one maintains that when Congress does not delegate too much discretion, it does not delegate legislative power. Cf. Shane, supra note 74, at 592 (presenting the argument that Congress's delegations of rulemaking authority are not delegations of legislative power because Congress is regulating by "authorizing others to issue rules, subject to congressional revocation of rulemaking authority").
115. See supra note 9 and accompanying text.
116. Of course, one might wonder why Congress should be free to employ the Necessary and Proper Clause to delegate authority over fiscal matters when Congress may establish its own tax and spending priorities and thereby eliminate the budget deficit. Whether Congress delegates lawmaking, cancellation, or modification authority, however, it does so because it believes that such delegations are beneficial, notwithstanding that Congress might have established more precise rules itself. In the case of the Act, members of Congress arguably decided to delegate authority to the President to enable him to restrain Congress because they believed that Congress had a proven inability to curb rent seeking and the accompanying deficit spending. Cf. Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 VA. L. REV. 471, 481 (1988) (arguing that during ratification of a constitution, individuals agree to constrain rent seeking, recognizing that everyone is better off under such a system).
117. In discussing Gramm-Rudman-Hollings, Justice White argued that Congress, pursuant to the Necessary and Proper Clause, could delegate sequestration power - essentially, cancellation authority - to the Comptroller General to counteract increasing deficits. See Bowsher v. Synar, 478 U.S. 714, 776 (1986) (White, J., dissenting).
118. At times, I have called the statutory discretion ceded by Congress "legislative authority." In my view, delegated discretion is delegated legislative power, because in most instances, Congress could have withdrawn (at least in part) that discretion. But see supra note 78. The argument, however, does not turn on the label that one places on such authority. Whatever one calls such authority, Congress is delegating, pursuant to the Necessary and Proper Clause, decisions that it could have made.
119. One should not be surprised that the Constitution permits the delegation of legislative authority or discretion. Indeed, the notion of delegation is not at all alien to the Constitution. Clearly, "We the People of the United States" delegated some of our liberties and powers to the federal government. Within the federal government itself, it is obvious that Congress may delegate the Senate's power to confirm inferior officers to the President, to the courts, or to subordinate executive officers. See U.S. CONST. art. II, § 2, cl. 2 ("Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.") Moreover, the Constitution implicitly permits the President to delegate some of his executive functions, particularly the executive power to execute the laws, to his subordinates. See Calabresi & Prakash, supra note 17, at 593-99.
120. I do not suggest that Congress may delegate all of the powers that the Constitution confers. For instance, one might view the impeachment functions, see U.S. CONST. art. I, § 2, cl. 5 & § 3, cl. 6, and Congress's role in presidential contests, see id. amend. XII, as functions that Congress may not delegate. There might be many other authorities that Congress cannot confer. More generally, I certainly do not believe that Congress may use the Necessary and Proper Clause to circumvent constitutional provisions such as the Constitution's investiture of the executive power with the President. Cf. Lawson & Granger, supra note 74, at 333-34 (arguing that the Necessary and Proper Clause does not grant Congress unlimited power to structure the federal government).
121. Because the Necessary and Proper Clause provides the textual hook for delegating, there is a sound basis for the nondelegation doctrine: delegations are permissible as long as they do not go "too far." See Lawson, supra note 74, at 150-53 (claiming that "proper" in the Necessary and Proper Clause is the source of the "nondelegation principle"). More accurately, delegations are permissible if they are "necessary and proper" to carry into effect Congress's legislative power. See supra notes 74-82 and accompanying text.
122. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). During the New Deal era, the Supreme Court struck down three federal acts because they impermissibly delegated congressional authority. See Carter v. Carter Coal Co., 298 U.S. 238, 310-12 (1936) (striking down a law delegating the authority to fix minimum hours of labor to a majority of coal producers and miners); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-42 (1935) (striking down a law authorizing the President to approve codes of unfair competition); Panama Ref. Co. v. Ryan, 293 U.S. 388, 414-30 (1935) (striking down a law authorizing the President to prohibit interstate and international transportation of certain petroleum products). Since that era, however, the Supreme Court has not invoked the intelligible principle standard to strike down alleged delegations of legislative power. Nevertheless, the Supreme Court has never retracted the intelligible principle standard.
123. Having decided that the Presentment Clause prevented executive repeals, the Court never analyzed whether the Act was infirm on nondelegation grounds. See Clinton v. City of New York, 118 S. Ct. 2091, 2108 (1998).
124. See 2 U.S.C. § 691(a)(A)(i)-(iii) (Supp. II 1997).
125. One might argue that the requirement of a reduction in the deficit really was superfluous because any cancellation would seem to reduce the deficit. Cancellations, however, can have uncertain effects on the deficit. For instance, canceling a capital maintenance provision may save money in the short term, but may lead to increased expenditures in the long run (and thus provide the potential for a larger budget deficit later). Moreover, as noted above, when there is no deficit, there can be no cancellations that will shrink the deficit. These considerations make it less obvious that a particular cancellation would reduce the budget deficit. Regardless, the Act should not fail the intelligible principle test merely because Congress was wise enough to structure the Act to ensure that cancellations generally would decrease the budget deficit.
126. All one needs is "an intelligible principle," not many such principles. J.W. Hampton, Jr. & Co., 276 U.S. at 409 (emphasis added).
127. See supra note 27.
128. See 2 U.S.C. § 691(a)(1)-(3).
129. See id. § 691(a)(B).
130. See id. §§ 691(a), 691e(7).
131. See id. § 691f; supra notes 45-47 and accompanying text.
132. Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 757-58 (D.D.C. 1971).
133. Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 642-46 (1980).
134. Loving v. United States, 517 U.S. 748, 771 (1996).
135. See, e.g., MARTIN REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 135-137 (1995) (arguing that the Court has abandoned the limits on delegation and that Congress must make normative decisions to enable voters to hold them accountable); SCHOENBROD, supra note 21, at 158 (arguing that the intelligible principle standard has left difficult choices to agencies, rather than forcing Congress to take responsibility for "the controversial implications of its legislation").
136. One might question the need for distinct cancellation and modification frameworks given the "intelligible principle" standard. Because some scholars find the intelligible principle standard inadequate, see supra note 113, it seemed necessary to fashion frameworks that are independent of any particular view of delegation's limits. As a result, one severe limitation of the Frameworks is that they do not provide actual tests for delegations of cancellation or modification authority. Rather, they merely demonstrate how to extend any nondelegation test that is applied to lawmaking delegations to cancellation and modification delegations as well.
137. For instance, in the Internal Revenue Code, Congress granted to the Secretary of the Treasury the authority to adopt "all needful rules and regulations for the enforcement of th[e Code]." 26 U.S.C. § 7805(a) (1994). Clearly, the Secretary of the Treasury need not issue any rules. Congress granted similar authority to the Securities and Exchange Commission. See 15 U.S.C. § 78j (1994) (ceding discretion to issue rules "as necessary or appropriate . . . for the protection of investors" against manipulation and deception).
138. See, e.g., American Trucking Ass'n, Inc. v. Atchinson, Topeka, & Santa Fe Ry., 387 U.S. 397, 416 (1967) (finding that "the [Interstate Commerce] Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice").
139. Implicit in the decisions during the impoundment controversies of the 1970s was the notion that appropriations acts may grant authority to spend funds without requiring that funds be expended. See, e.g., Train v. City of New York, 420 U.S. 35, 44-46 (1975) (discussing an act in which Congress required expenditure of all amounts appropriated). There would be no reason to discuss, at length, the mandatory nature of an appropriations act if, as a constitutional matter, all appropriations acts must require the expenditure of all funds appropriated. Accordingly, Congress may provide budget authority without requiring that all of it be utilized, leaving it to the Executive Branch to determine what amounts, if any, will be expended. See Clinton v. City of New York, 118 S. Ct. 2091, 2116-18 (1998) (Scalia, J., concurring in part and dissenting in part); Martin, supra note 12, at 1648 (claiming that most appropriations acts have not required expenditure of all funds).
140. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (asserting that "allocation of funds from a lump-sum appropriation is [something] committed to agency discretion"); International Union v. Donovan, 746 F.2d 855, 860-61 (D.C. Cir. 1984) (asserting that "[a] lump-sum appropriation leaves it to the recipient agency . . . to distribute the funds among some or all of the permissible objects as it sees fit"); see also Stith, supra note 36, at 613 (observing that "as a matter of law an administrating agency has discretion over how to allocate each lump-sum appropriation; this authority is the converse of the agency's legal obligation to adhere to every statutory line itemization").
141. Congress even could cede discretion to cancel a statute that itself ceded discretion. For instance, if Congress may allow the President to decide whether to issue pollution regulations, Congress may direct the President to issue a water pollution standard after considering certain factors, but also allow him to cancel that "command." In other words, Congress could not only cede authority to cancel rules, but could also cede authority to cancel statutory discretion. Because one theme of this Article is that almost all statutes contain discretion, see supra Part II.A, this conclusion should come as no surprise.
142. Professor Lessig provides another extreme example: May Congress enact a statute permitting the President to declare war by, in effect, canceling a congressional resolution declining to declare war? See Lessig, supra note 22, at 1661. Lessig believes that the cancellation of a congressional resolution providing that "America shall not declare war on Libya" means that America has declared war on Libya. See id. Essentially, the President's cancellation means that the President has declared war unilaterally. If we would sanction a lawmaking delegation to the President to declare war, we should sanction this hypothetical war power cancellation delegation. More likely, however, we would reject the notion that Congress could delegate the power to declare war and therefore, we would reject this cancellation delegation as well.
143. Someone with a very narrow view of the scope of permissible delegations might find the hypothetical delegation of funds for military supplies problematic and therefore will be troubled by cancellation of the more specific provisions. Nevertheless, even a proponent of strict limits on delegations must admit that there always will be some acceptable level of delegated discretion. See supra notes 74-82 and accompanying text. As to these permissible delegations, Congress certainly could draft more specific rules and permit departures from the rules.
144. The Modification Framework more completely captures how and when Congress may delegate authority to depart from statutory rules because cancellations are merely one type of departure from statutory details. Nevertheless, because some may view cancellations as more or less problematic than modifications, this Article discusses the Frameworks separately.
145. As with the Cancellation Framework, some modifications will be problematic. Where Congress could not have ceded lawmaking discretion in the first instance, it will not be able to set a standard and then permit executive modification.
146. In a narrower context, Justice Scalia recognizes this point: "Had the Line Item Veto Act authorized the President to 'decline to spend' any item of spending contained" in an act, "there is not the slightest doubt that authorization would have been constitutional" Clinton v. City of New York, 118 S. Ct. 2091, 2118 (1998) (Scalia, J., concurring in part and dissenting in part); see also id. at 2116 (Scalia, J., concurring in part and dissenting in part) ("[T]here is not a dime's worth of difference between Congress's authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion."). One similarly could view the cancellation of any statute - the statute could have granted greater leeway in the first instance and thus, from a delegation perspective, there is not a dime's worth of difference between the two types of delegated authority.
147. See infra Part III for a consideration of contrary arguments.
148. See, e.g., REDISH, supra note 113, at 142; SCHOENBROD, supra note 21, at 13-14.
149. To be sure, not all cancellation delegations merely grant an executive officer the choice between "A" and "not A." Because "A" may be a statutory delegation of considerable discretion, the executive officer armed with cancellation authority actually may face the choice amongst not A and A1, A2, A3, and so on (i.e., the possible policy outcomes stemming from the discretion contained in A). Nevertheless, sometimes the discretion that a cancellation delegation cedes will yield a scope of discretion much more circumscribed than many sweeping lawmaking delegations. Thus, if A is a statute with relatively little discretion, cancellation authority with respect to A is a rather narrow expansion of executive discretion. Accordingly, the resulting scope of discretion with respect to such a statute will be far more narrow than many statutes that grant broad lawmaking authority.
150. See Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 639-40 (1980) (holding that the Secretary, before issuing any health and safety standard, must determine only that the standard is "reasonably necessary and appropriate to remedy a significant risk of material health impairment").
151. Of course, one could imagine cancellation authority that included with it the ability to revive the canceled provision.
152. See Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968) (stating that agencies typically have the power to "adapt their rules and policies to the demands of changing circumstances"). Once again, modification delegations, properly constrained, can have the same features - they can be more limited than most lawmaking delegations and capable of being used only once.
153. See supra note 115.
154. Indeed, Congress could delegate to the President, under the right circumstances, the power to completely change the meaning of a statute. Suppose a law permitted the President to cancel any word, phrase, or provision of a law. Although there might be instances where such changes would amount to impermissible delegations, there also would be circumstances in which Congress could have given to the President the regulatory authority to adopt the resulting, modified provision itself (i.e., the provision incorporating his changes). But see Glen O. Robinson, Public Choice Speculations on the Item Veto, 74 VA. L. REV. 403, 405 n.11 (1988) (noting the agreement across states that item veto authority may not be used to distort legislative intent by selective redaction). As discussed below, however, if Congress granted such authority, the use of such cancellation or modification authority would not thwart Congress's will because by authorizing cancellations, Congress itself would have contemplated that executives might take such steps. See infra Part III.C.1.
155. See 2 U.S.C. § 691e(7)(B)(iv) (Supp. II 1997).
156. See supra note 113.
157. As discussed earlier, however, even "specific" legislative policies generally will cede some discretion. See supra notes 74-82 and accompanying text.
158. See, e.g., Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehnquist, J., concurring in the judgment) (criticizing Congress for adopting wholly precatory statutes and leaving standard setting to the Secretary of Labor). Many scholars believe that lawmaking delegations enable Congress to avoid responsibility. See, e.g., SCHOENBROD, supra note 21, at 84-95. In reality, because Congress chooses to delegate, it should be held responsible for the decisions that its delegees make and for not making the decisions itself.
159. To be sure, there still might be some confusion regarding responsibility because Congress would have permitted departures from the congressional rule. Still, there will be instances when an executive officer does not repeal or modify the congressional rule. In such cases, it will be easy to pin blame or bestow credit. Even when an executive officer cancels or modifies a congressional rule, however, the existence of an initial statutory rule may underscore that Congress retains ultimate responsibility and should be praised or condemned for any policy resulting from delegated discretion. When individuals see a rule established by a statute and then understand that Congress permitted an executive officer to cancel or modify that rule, these individuals will praise or blame Congress, as they should.
160. Compare 2 U.S.C. §§ 901-902 (1994) (requiring across-the-board cancellations under spending caps as pay-as-you-go rules are breached), with supra notes 110-111, 116 and accompanying text (discussing statutes with very broad lawmaking delegations).
161. See 2 U.S.C. § 901(a)(2).
162. Section 901(a)(2) references the "non-exempt accounts" that the OMB must cut. See id. Apparently, "non-exempt accounts" are those "accounts" as defined in section 900(c)(11) that are not listed as "exempt programs and activities" in section 905. See id. §§ 900(c)(11) & 905.
163. See id. § 901.
164. See id. § 902(b)-(c).
165. Professor Rappaport's intriguing claim comes to mind. He asserts that the Act is unconstitutional because it amounts to a "veto burden" by contemplating cancellation delegations only when the President has signed the underlying bill into law. See Michael B. Rappaport, Veto Burdens and the Line Item Veto Act, 91 NW. U. L. REV. 771, 772 (1997). Congress could have satisfied his concern had it granted cancellation authority without regard to how a statute became law.
166. See Clinton v. City of New York, 118 S. Ct. 2091, 2095 (1998).
167. U.S. CONST. art. II, § 3.
168. Undoubtedly, delegations of cancellation and modification authority will not trouble those who do not believe in any limitations on Congress's ability to delegate. Such individuals should proceed to Part III.B.
169. See supra note 115 and accompanying text.
170. See Gerhardt, supra note 22, at 239-40; Lessig, supra note 22, at 1663.
171. 956 F. Supp. 25 (D.D.C. 1997), vacated, 117 S. Ct. 2312 (1997).
172. Id. at 37.
173. Clinton v. City of New York, 118 S. Ct. 2091, 2107 (1998).
174. See Brief for Appellants at 47-48, Raines v. Byrd, 117 S. Ct. 2312 (1997) (No. 96-1671), available in 1997 WL 251415 (citing several federal statutes "that currently authorize the Executive Branch to suspend their provisions, grant exemptions from their requirements, or otherwise modify their operation").
175. 28 U.S.C. §§ 2071-2074 (1994).
176. See id. § 2072; see also id. § 2075 (providing similar authority with respect to bankruptcy procedural rules). One might distinguish authority delegated to the courts with respect to procedural rules on the grounds that the Judiciary already enjoys the power to set procedural rules pursuant to Article III, Section 1's investiture of the "Judicial Power." The inherent authority to set procedural rules, however, does not indicate that the Judiciary also enjoys the ability to alter congressionally established statutory rules. Absent a statutory delegation, the Judiciary may have inherent authority to prescribe procedural rules only when Congress has not already set rules by statute. In any event, as the above discussion makes clear, there are other examples of cancellation authority that cannot be explained by reference to some inherent authority.
177. Pub. L. No. 91-513, 84 Stat. 1242 (codified as amended in scattered sections of 21 U.S.C.) (regulating the manufacture, possession, and distribution of controlled substances). 156 See 21 U.S.C. § 811(a) (1994).
178. The plaintiffs in Raines understood that the Controlled Substances Act posed a problem for their claims. They attempted to distinguish the act on the grounds that it permitted the President to "respond to changing circumstances over time, [which was] nothing like the President's essentially unbounded, and certainly unreviewable, one-time and irreversible . . . power" to strike provisions of law. Reply Brief for Appellees at 16, Raines v. Byrd, 117 S. Ct. 2312 (1997) (96-1671), available in 1997 WL 269313. Cancellations are less problematic precisely because they are irreversible. See supra Part II.D.2.
179. 50 U.S.C. app. §§ 2061-2170 (1994).
180. See id. app. § 2166(b)(1).
181. See Agricultural Adjustment Act § 13, 7 U.S.C. § 613 (1994) (providing for cancellation if President finds that agricultural emergency "has been ended"); Middle East Peace and Stability Act § 6, 22 U.S.C. § 1965 (1994) (authorizing President to cancel aid to Middle Eastern nations when President determines peace and security are adequately ensured); Act of June 10, 1933, ch. 55, § 1, 48 Stat. 119 (repealed 1947) (authorizing the President to declare the Reconstruction Finance Corporation's authority to engage in specified loan and stock transactions "no longer operative").
182. See 2 U.S.C. §§ 901-902 (1994). For a discussion and analysis of Gramm-Rudman-Hollings, see Stith, supra note 36.
183. See 2 U.S.C. § 901(a)(2).
184. See Clinton v. City of New York, 118 S. Ct. 2091, 2105-07 & n.40 (1998) (discussing the Tariff Act of 1890, other tariff and import statutes, appropriations statutes, and the Rules Enabling Act). The Court curiously ignored the other statutes ceding cancellation authority, particularly Gramm-Rudman-Hollings.
185. See id. at 2106. The Court stated that the President has more discretion in the foreign affairs arena than in strictly domestic affairs. See id.
186. See id. at 2130 (Breyer, J., dissenting) (discussing the power of early Treasury Secretaries to remit statutory penalties for nonpayment of liquor taxes and other examples).
187. See id. at 2129-30 (Breyer, J., dissenting) (discussing discretion ceded by cancelable tax statutes).
188. See id. at 2107 n.40.
189. Id.
190. See 2 U.S.C. § 691(a)(B) (Supp. II 1997).
191. Clinton v. City of New York, 118 S. Ct. at 2107 n.40.
192. E.g., 26 U.S.C. § 172(h)(4)(C) (1994) (allowing the Treasury Secretary to relax by regulation the statutory rule requiring consolidated companies to be treated as one taxpayer); Id.. § 4461(c)(2) (permitting the Treasury Secretary to vary by regulation the statutory rule for determining when to impose the Harbor Maintenance Tax).
193. Perhaps it would be impermissible to issue regulations that completely undermine the statutory rule or definition. At the same time, however, the statutory language permitting departures from the statutory rule does not read as a power to make limited exceptions. Rather, it creates a rule that applies except as the Secretary otherwise provides. A Treasury Secretary intent on an expansive view of her authority might insist that the statute permitted her to completely undermine or circumvent the statutory rule.
194. See 15 U.S.C. § 78g(a)-(b) (1994).
195. See id. § 78g(a)(1), (b). The Federal Reserve Board has used this authority to lower the rate to 50%. See JAMES D. COX, ET AL., SECURITIES REGULATION: CASES AND MATERIALS 1136 (2d ed. 1997).
196. Ch. 404, 48 Stat. 881 (codified as amended in scattered sections of 15 U.S.C).
197. 15 U.S.C. § 78mm (Supp. II 1997). The Securities Act of 1933 contains similar authority, see 15 U.S.C. § 77z-3 (Supp. II 1997), as does the Investment Company Act, see 15 U.S.C. § 80a-6(c) (1994) (allowing the SEC to exempt anyone from rules of Investment Company Act), and the Investment Advisors Act, see 15 U.S.C. § 80b-6a (1994) (same with respect to Investment Advisors Act).
198. 512 U.S. 218 (1994).
199. See id. at 220
200. 47 U.S.C. § 203 (b)(2) (1994); see MCI Telecommunications, 512 U.S. at 220.
201. MCI Telecommunications, 512 U.S. at 220.
202. American Trucking Ass'n, Inc. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397, 416 (1967).
203. Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968).
204. Indeed, we ought not be surprised that Congress generally has not ceded authority to cancel or modify statutes. Having drafted and passed a statute, we might expect that Congress wishes to reserve the authority to repeal or modify it, rather than sharing these authorities with the Executive Branch. Still, an institutional reluctance to delegate cancellation or modification authority arguably reflects nothing more than a desire to retain the power to repeal or modify laws rather than a skepticism towards the propriety of cancellation and modification authority generally. A tradition of withholding cancellation and modification authority does not run afoul of Justice Marshall's assertions in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), that a long historical practice makes subsequent challenges to that practice suspect. See id. at 401. In McCulloch, the Court considered the constitutionality of the Bank of the United States, an issue that Congress had debated quite vigorously prior to the Bank's creation. See id. There is no similar debate about cancellation or modification authority (of which I am aware) in which legislators concluded that they could not delegate such discretion. We construe silence as a historical practice at our own peril.
205. See U.S. CONST. art. II, § 2, cl. 1 (giving the "Power to grant . . . Pardons for Offences against the United States" to the President). Currently, Congress funds pardon assistance for the President. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2441 (1997) (appropriating $70,007,000 "[f]or expenses necessary for the administration of pardon and clemency petitions").
206. Sargentich, supra note 12, at 109.
207. See supra note 80 and accompanying text.
208. But see supra Parts III.A.1.a-c.
209. See supra notes 78-79 and accompanying text.
210. Admittedly, there will still be a difference between the broad categories themselves. Lawmaking delegations generally must occur, but cancellation delegations are never necessary. Based on such a claim, someone with a narrow view of the Necessary and Proper Clause's scope might believe that lawmaking delegations are acceptable and that law-cancellation delegations are not. But see infra notes 197-199 and accompanying text (asserting that lawmaking and law canceling are both examples of lawmaking generally).
211. But see Clinton v. City of New York, 118 S. Ct. 2091, 2120-21 (1998) (Breyer, J., dissenting) (claiming that the President executed the Line Item Veto Act when he canceled provisions of laws).
212. See Gerhardt, supra note 22, at 239 (asserting that everyone agrees that executive repeals are exercises of "legislative authority"); Sargentich, supra note 12, at 107-109 (asserting that cancellations amount to lawmaking).
213. 5 U.S.C. § 553 (1994).
214. Sargentich, supra note 12, at 109.
215. See supra notes 115-116 and accompanying text.
216. See supra notes 115-116 and accompanying text.
217. See supra Part II.D.1.
218. Undoubtedly, one could discern other differences between the two types of delegations.
219. 490 U.S. 212 (1989).
220. Id. at 222-23 (finding that congressional delegations of discretionary authority under its taxing power are not subject to a higher standard of scrutiny).
221. U.S. CONST. art. I, § 7, cl. 2.
222. See INS v. Chadha, 462 U.S. 919, 946-48 (1983).
223. See Lund, supra note 12, at 456-57 n.16 (arguing that if the President disapproves of a bill, he must "return it," which indicates that he returns the whole bill, not just parts of it).
224. See Clinton v. City of New York, 118 S. Ct. 2091, 2108 (1998) (twice describing its holding as "narrow").
225. Id. at 2103. Senator Robert Byrd, on the other hand, believed that the Act violated "the clear language of the Presentment Clause." Byrd, supra note 22, at 320.
226. See Clinton v. City of New York, 118 S. Ct. at 2103.
227. Id. at 2104-05 (quoting Chadha, 462 U.S. at 951). Based on this reasoning, the Court declared in Chadha that "[r]epeal of statutes, no less than enactment, must conform with Art[icle] I." Chadha, 462 U.S. at 954.
228. See Clinton v. City of New York, 118 S. Ct. at 2104.
229. See id.
230. Id. at 2107.
231. Justice Breyer denied that there was a Presentment Clause problem because the Line Item Veto Act did not really permit the President to "repeal" or "amend" any law. See id. at 2120 (Breyer, J., dissenting). Instead, when the President canceled a law, he actually followed the Act. See id. (Breyer, J., dissenting). Justice Breyer is quite right to argue that when an executive cancels a law, he acts consistently with that law because the canceled law should be understood as containing the authority that permits its cancellation. See id. (Breyer, J., dissenting). Nonetheless, in executing the Line Item Veto Act, the President undoubtedly renders another legal provision inoperative. Executive repeals are no less repeals merely because they are done pursuant to statutory authority. To be sure, Justice Breyer correctly points out that there are still some Gramm-Rudman-Hollings "lockbox" effects of a canceled provision, see id. at 2122-23 (Breyer, J., dissenting); supra Part I.C, but that does not detract from the fact that cancellations alter legal obligations or entitlements. Indeed, the presence of phantom limb symptoms in the aftermath of an amputation does not mean that an amputation did not take place. Similarly, if we conceive of every appropriation as having two components, one part mandating spending (subject to cancellation) and one part having Gramm-Rudman-Hollings consequences, we understand that when the President cancels an appropriation, there may be lingering effects. These lingering effects of a canceled provision, however, do not detract from the fact that the provision has been canceled and that at least some of the provision's effects will not be felt in the future. The majority perhaps recognized that its arguments were not dependent upon the claim that a canceled provision has no lingering legal effects. See Clinton v. City of New York, 118 S. Ct. at 2104-05 ("The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.").
232. Clinton v. City of New York, 118 S. Ct. at 2107.
233. See BLACK'S LAW DICTIONARY 1436 (6th ed. 1990) (defining "sunset law" as "a statute or provision in a law that requires periodic review of the rationale for [its] existence" and that will cease to exist absent positive steps by the legislature to continue its existence (emphasis added)).
234. See supra Part II.A.1.a.
235. See 28 U.S.C. § 2072(b) (1994); supra note 154 and accompanying text.
236. See supra notes 159-160 and accompanying text.
237. See Clinton v. City of New York, 118 S. Ct. at 2105-07; supra note 163 and accompanying text.
238. Id. at 2106. As noted earlier, the Court curiously claimed that in the Rules Enabling Act, Congress determined that existing rules that conflicted with Court-promulgated rules would be superseded automatically. See id. at 2107 n.40; supra notes 167-168 and accompanying text. The Court, however, should have viewed cancellations under the Act in the same way - Congress provided that when it received the President's cancellation message, the items listed therein would be automatically canceled. In fact, the cancellations were not effective until both chambers receive the President's special cancellation message. See 2 U.S.C. § 691b(a) (Supp. II 1997).
239. See 15 U.S.C. § 78j(b) (1994) (prohibiting the use of manipulative and deceptive practices "in contravention of such rules and regulations as the Commission may prescribe").
240. By its own force, section 10(b) prohibits nothing. See id. The SEC must issue regulations in order for that section to have any effect. Of course, when the SEC issues regulations, it has altered the legal status quo by placing new burdens on traders.
241. 462 U.S. 919 (1983).
242. See id. at 953-54 n.16.
243. See id.
244. Id.
245. Justice White came to this same conclusion about the import of Chadha. He noted that Congress may delegate lawmaking power to others, including to private parties, see id. at 987 (White, J., dissenting) (citing Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533, 577 (1939)), but Congress may not delegate to itself (or a subset of itself) the power to "veto" executive actions. See id. (White, J., dissenting). Rather, Congress must legislate (i.e., enact a new bill) to "veto" an executive decision. See id. (White, J., dissenting).
246. Justice Scalia understands this point. See Clinton v. City of New York, 118 S. Ct. 2091, 2116 (1998) (Scalia, J., concurring in part and dissenting in part) (arguing that the Presentment Clause "no more categorically prohibits the Executive reduction of congressional dispositions . . . than it categorically prohibits the Executive augmentation of congressional dispositions . . . generally known as substantive rulemaking").
247. See Chadha, 462 U.S. at 953 n.16.
248. One might question why Article I limits congressional lawmaking, but not executive lawmaking. Although the Supreme Court never defended this aspect of its opinion, the answer perhaps lies in the inevitability of executive lawmaking outside of Article I. See supra note 80 and accompanying text.
249. For the sake of stability, Congress undoubtedly could permit the President to deploy delegated discretion only once.
250. One might claim that if Congress enacted such a delegation, it would be attempting improperly to circumvent the Presentment Clause. Of course, one could make the same claim about any delegation. Whenever Congress chooses to delegate discretion, it circumvents the difficult task of satisfying bicameralism and presentment. In other words, delegation generally could be seen as an evasion of bicameralism and presentment.
251. 1 U.S.C.A. XIII (West 1997) (listing titles of U.S. Code that Congress has codified into positive law).
252. See 2 U.S.C. § 285b(1) (1994) (instructing the office of the Law Revision Counsel to prepare and submit to the Judiciary Committee "a complete compilation, restatement, and revision of the general and permanent laws of the United States").
253. I say "may" because it is unclear that the Law Revision Counsel would codify any executive repeals or modifications. Section 285b(1) lacks precise guidelines that deal with this situation. See 2 U.S.C. § 285b(1). Moreover, because the U.S. Code is updated every year by supplement, see MORRIS L. COHEN ET AL., HOW TO FIND THE LAW 152 (9th ed. 1989), the Law Revision Counsel may not have codified the unmodified statute prior to the repeal or modification of a provision. If a provision never was codified in the U.S. Code prior to executive repeal or modification, then a subsequent codification incorporating the executive alteration will not change the U.S. Code. Instead, the Counsel probably would codify the provision as modified by the President. In other words, U.S. Code would not change as a result of an executive repeal or modification.
254. See 1 U.S.C.A. XIII (listing only a minority of titles as being codified into positive law).
255. 1 U.S.C. § 204(a) (1994).
256. See 1 U.S.C.A. XIII. The text of title 2 of the U.S. Code is prima facie evidence of the law, see 1 U.S.C. § 204(a), but the Statutes at Large supersedes whenever there is a difference. See id. § 112 (1994); see also United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 448 (1993) (stating that the United States Code is prima facie evidence of the law, but that the Statutes at Large provides "legal evidence of the laws").
257. See Clinton v. City of New York, 118 S. Ct. 2091, 2095-96 (1998).
258. See 2 U.S.C. § 285b(1).
259. In truth, as noted earlier, we do not know what the Law Revision Counsel would have done regarding canceled provisions because it is not clear that Counsel should incorporate the changes pursuant to 2 U.S.C. § 285b(1). See supra note 232.
260. See Lund, supra note 12, at 456-57 n.46; Rappaport, supra note 143, at 771.
261. See Sargentich, supra note 12, at 118 (asserting that limits on the President's veto should not be circumvented by granting new veto authority after the President signs a bill into law).
262. Clinton v. City of New York, 118 S. Ct. at 2104 (quoting 33 THE WRITINGS OF GEORGE WASHINGTON 96 (John C. Fitzpatrick ed., 1940)). In truth, Washington's statement goes only to the President's constitutional authority. He did not address whether Congress might accord the President additional authority to use either before or after a bill becomes law. Accordingly, Washington speaks of what was, not what could be.
263. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 829 (1995).
264. See U.S. CONST. art. II, § 2, cl. 2 (providing that Senate must confirm non-inferior officers).
265. See id. (establishing the requirement of Senate confirmation for all officers, but permitting Congress, by law, to vest the appointment of inferior officers with the President, heads of departments, and courts); id. art. III, § 1 (refraining from establishing inferior federal courts but explicitly permitting Congress to do so).
266. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 44 (1980) (explaining that Congress may permit the states to restrict flow of commerce even though the Constitution would otherwise prohibit state regulation).
267. See Calabresi & Prakash, supra note 17, at 592-93 (arguing that the Necessary and Proper Clause permits Congress to create executive offices subordinate to the President while noting that Constitution does not create such positions itself).
268. Cf. Clinton v. Jones, 117 S. Ct. 1636, 1652 (1997) (stating that Congress could provide the President with some protections from civil suits). Congress could grant such immunity notwithstanding the negative implications of the Constitution's conferral of limited immunity to members of Congress. See U.S. Const. art. I, § 6, cl. 1 (providing immunity to members of Congress for speeches and debates in Congress).
269. But see Byrd, supra note 22, at 320 (asserting that Act granted an "unconstitutional fourth option for the President by effectively allowing him to sign only certain portions of a bill into law").
270. See Sargentich, supra note 12, at 101-03.
271. Even if one thought the Constitution's veto implicitly precluded the delegation of cancellation authority to the President, one might conclude that it poses no obstacles to the delegation of cancellation authority to others.
272. Justice Scalia claimed that the Act's title had "succeeded in faking out the Supreme Court." Clinton v. City of New York, 118 S. Ct. 2091, 2118 (1998) (Scalia, J., concurring in part and dissenting in part).
273. Given the weakness of the Presentment Clause argument, one wonders whether the Court used it as a convenient hook for striking down the Act. Indeed, there might not have been a majority that believed that the nondelegation doctrine or some other ground rendered the Act unconstitutional. The Presentment Clause thus might have served as a way to cobble a majority for an opinion designed to have few repercussions.
274. See Lessig, supra note 22, at 1662-63 (asserting that cancellations are unconstitutional because they amount to a "negation" of congressional policy choice and effectuate "the President's contrary policy will").
275. See Gerhardt, supra note 22, at 241-42 n.38 (asserting that a decision to sever an item from a bill "obviously unravels the compromise initially giving rise to its inclusion").
276. City of New York v. Clinton, 985 F. Supp. 168, 179 (D.D.C. 1998), aff'd, 118 S. Ct. 2091 (1998); see also Gerhardt, supra note 22, at 240 (asserting that the Act "profoundly alter[ed] the balance of power[s]" and established an "uneven playing field" for budget matters).
277. See generally Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996) (arguing that the President's powers are already enormous and that increasing those powers will only further erode the balances of power).
278. See Lessig, supra note 22, at 1661-62.
279. More accurately, it was Congress's policy to permit cancellations when it enacted the cancellation delegation.
280. See supra notes 5-7.
281. City of New York v. Clinton, 985 F. Supp. at 178-79.
282. See Clinton v. City of New York, 118 S. Ct. 2091, 2104 (1998).
283. See Gerhardt, supra note 22, at 240-41.
284. See id.
285. See 15 U.S.C. § 78j(b) (1994).
286. In effect, the Act's rule of construction merely permitted the President to say "yes" or "no" to certain provisions within a five-day period. Given such binary outcomes, members of Congress could foresee the decision tree: with respect to every act, members knew that a provision might or might not be canceled in whole within a five day period. Thus a provision that seemingly required the expenditure of $10 million for a new federal building did not require the building's construction at all until the President failed to cancel the provision. In other words, under the Act, Congress made all provisions cancelable for five days, and then mandatory after that.
287. As noted earlier, the same phenomena occurs whenever Congress passes a statute that delegates authority. Congress votes for the statute and, in effect, for the myriad regulatory possibilities that might result from executive lawmaking under that statute. Sometimes the executive lawmaking effectively will eviscerate the statute; sometimes the executive lawmaking will expand it beyond the wildest dreams of the statute's supporters.
288. When an act cedes cancellation authority as to future statutes (such as the Line Item Veto Act), there is an additional concern about the difficulty of dislodging this rule of construction. That Congress may find it difficult to alter a rule of construction or other statute, however, does not make such laws unconstitutional. Congress always can reclaim any authority that it ceded and the difficulty in retracting such authority does not matter. Thus, a codified Chevron presumption would not be unconstitutional merely because it might be hard for future Congresses to repeal this presumption. See Stith, supra note 36, at 659-60 (asserting that statutes are not unconstitutional merely because they burden future Congresses by forcing them to repeal the statutes if they do not approve of them). Gramm-Rudman-Hollings erected a very similar hurdle to that of the Act. If members of Congress wanted a statute's appropriations to be spent regardless of the sequestration procedure, members had to include language indicating that the appropriation or entitlement program was to be implemented notwithstanding the breach of a cap. See id. at 662 (contending that Gramm-Rudman-Hollings was constitutional notwithstanding that members of Congress had to make clear their desire to have funds expended and not sequestered). Gramm-Rudman-Hollings's rule of construction - future statutes will be construed to be cancelable in part if the spending caps are breached - changed the dynamics of legislating and outcomes similarly, but did not thereby change unconstitutionally the rules of the legislative game. In any event, as discussed below, the Act's rule of construction can be foiled without even passing legislation, thus making the Act particularly easy to circumvent. See infra notes 275-277 and accompanying text.
289. The Framers may have granted certain powers out of a concern that the branch empowered otherwise would be too weak and the other branches too strong. The President's veto and the salary provisions for the President and federal judges come to mind. Just because many of the Framers wanted to ensure that each branch had adequate support and defense mechanisms, however, does not mean that they constitutionalized a judicially enforceable "balance" principle.
290. To be sure, the Court seems to invoke general separation of powers principles to invalidate statutes. For instance, some might view Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 265-77 (1991) (holding that Congress's creation of a Board of Review composed of congressmen with veto power over the Airports Authority's decisions violated the separation of powers), as an example where the Court found a violation of the Constitution largely on the grounds that Congress was attempting to upset the Constitution's balance. In this instance, Congress, through the use of a Board of Review to oversee the Airports Authority's actions, arguably tried to aggrandize itself at the expense of the Executive Branch.
291. Indeed, at least some Framers knew that absolute balance was not an end of the Constitution. Alexander Hamilton described the Judiciary as the "least dangerous" branch because the Judiciary supposedly has the least capacity to annoy or injure the rights under the Constitution. THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
292. The Founders described the legislature, however, as the "impetuous vortex," THE FEDERALIST NO. 48, at 309 (James Madison) (Clinton Rossiter ed., 1961),
293. with the tendency to "absorb" other authorities. THE FEDERALIST NO. 71, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
294. Had the Constitution codified a balancing test, there would be very little agreement about whether Congress, the President, or the courts should have the upper hand in interbranch struggles. Professor Flaherty finds the Executive Branch too powerful, see Flaherty, supra note 256, while Professor Paulsen perhaps believes that the Executive Branch should be the most powerful, but that because of errant constitutional tradition, the Judiciary has arrogated to itself the power to say what the law is for all three branches. See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
295. Many others (myself included) believe that the incredible expansion of federal legislative power during this century indicates that the vortex-like Congress has become too powerful. These difficulties bring to mind what Alexander Hamilton said in response to charges that the Senate would be too influential under the Constitution: "Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence?" THE FEDERALIST NO. 66, at 403 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Of course, such disagreements are common to many areas of constitutional law and we could not avoid such arguments even if the Constitution had codified a balancing test.
296. As noted earlier, not all cancellations will reduce discretion. See supra note 132 and accompanying text With the proper constraints, however, Congress could ensure that cancellation delegations only had such an effect.
297. One simply cannot deny that the Act, and cancellation and modification authority generally, grant the President extra power "over the legislative process." Lessig, supra note 22, at 1663. Any delegation, however, (lawmaking or otherwise) cedes the President increased control over policy. Cancellation and modification authority are not unique in this respect and should nor be found unconstitutional on such grounds.
298. A related issue concerning balance of "power" concerns control of the Treasury. One might view cancellation authority with respect to fiscal provisions as contrary to the Framers' expectation that Congress would control the federal government's mighty power of the purse. See THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The ability to keep money in the Treasury was not what worried the Founders; they were worried about the President (or anyone else) making unauthorized withdrawals of funds. See U.S. CONST. art. I, § 9, cl. 7 (stating that no funds may be withdrawn from Treasury absent a statutory directive). The frugal executive authorized by Congress poses less of a tyrannical threat than the executive that wantonly raids the Treasury.
299. See supra note 30.
300. Professor Vikram Amar has argued that a delegation of legislative authority ought to be less problematic if Congress can easily retract such authority. See Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 VAND. L. REV. 1347 (1996).
301. Even if one were convinced that presidential cancellation or modification authority somehow violated a "balance of powers" principle, that conclusion would not necessarily mean that Congress could not cede cancellation authority. One might conclude that Congress could delegate cancellation authority to someone other than the President.
302. U.S. CONST. art. II, § 3.
303. Byrd v. Raines, 956 F. Supp. 25, 37 (D.D.C. 1997), vacated, 117 S. Ct. 2312 (1997); see also Byrd, supra note 22, at 321 (asserting that cancellation authority turns the Take Care Clause "on its head").
304. See, e.g., Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 GEO. WASH. L. REV. 596, 613 (1989).
305. See Calabresi & Prakash, supra note 17, at 582-85; Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 YALE L.J. 991, 1000-03 (1993).
306. Cf. Clinton v. City of New York, 118 S. Ct. 2091, 2120 (1998) (Breyer, J., dissenting) (arguing that the exercise of cancellation power "executes" the Act).
307. To echo earlier arguments, even if the Take Care Clause precludes presidential cancellations, it arguably has no implications for what others should be able to cancel. Congress could delegate cancellation authority to someone independent of the Executive Branch and there could be no alleged violation of the Take Care Clause.