Introduction

Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.

Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.

 Article II, Section 2, provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States.

 Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.

 While the principle of federalism allocates power between the federal and state governments (in a sense, “vertically”), the principle of separation of powers allocates power among the three branches of governments (in a sense, “horizontally”).

  It has been said about this horizontal division of legislative, executive, and judicial power that “[p]erhaps no principle of American constitutionalism has attracted more attention than that of separation of powers.  It has in fact come to define the very character of the American political system.”[i]  James Madison, among other Founders, deemed separation of powers “a first principle of free government.”[ii]

The reason why separation of powers is indispensable to democratic institutions was ably expressed by Justice Lewis Powell in the 1983 case of Immigration and Naturalization Service v. Chadha.[iii]

"The Framers perceived 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, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear.  * * *  During the [period of the Articles of] Confederation, the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown."

Powell contiuned: 

One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. * * * Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and “[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy.” The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London edition 1787)).  * * * It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches.

Despite the importance of the separation of powers principle in preventing those abuses and the danger of tyranny potentially flowing from them, the Supreme Court—in Orwellian terms, the “more equal than others” branch—has frequently allowed one branch of government to invade the prerogatives of another, supposedly co-equal, branch.

Until September 11, 2001, the Republic could survive the ebbing and flowing of those power shifts.  But as we’ll see later in this section, our nation’s security, perhaps its very existence, can no longer afford those shifts because essential presidential powers have been arrogated unto itself by the Supreme Court of the United States.

 _____________________

 [i] Wood, The Creation of the American Republic, 1776 – 1787, 151.  The author, writing in 1969, nearly forty years ago, added in a footnote that “[t]he literature on separation of powers is enormous.”

  [ii] Wood, The Creation of the American Republic, 1776 – 1787, 152. 

[iii] 462 U.S.919, 103 S.Ct. 2764(1983).

Estelle v. Gamble

 The Court’s invention of “prisoners’ rights”

The Eighth Amendment to the Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Some 163 years after the amendment’s enactment, in the case of Trop v. Dulles Chief Justice Earl Warren jettisoned the original understanding of the Cruel and Unusual Punishments Clause in favor of the Living Constitution’s “evolving standards of decency that mark the progress of a maturing society.”[i] 

The befuddled and dangerous anti-separation of powers Cruel and Unusual Clause opinions that have resulted from Warren’s starry-eyed dismissal of the amendment’s English history, the rationale for the amendment’s inclusion in the Bill of Rights, the Court’s own earlier construction of the amendment, and state court interpretations of similar proscriptions, plague us to this day.

The plague began in earnest with the case of Estelle v. Gamble,[ii] an 8-1 decision of the Supreme Court.

J.W. Gamble was a Texas prisoner.  During a work assignment, he allegedly hurt his back.  Dissatisfied with the medical treatment he received, Gamble sued the prison warden and other prison officials for violation of his Eighth Amendment constitutional right not to be subjected to “cruel and unusual punishment.”

Justice Thurgood Marshall’s opinion for the Court noted that the Eighth Amendment “proscribes more than physically barbarous punishments,” that the government has an “obligation to provide medical care for those whom it is punishing by incarceration,” and that, thanks to Chief Justice Warren in the Trop case, this requirement is mandated by “contemporary” and “evolving standards of decency.”

Marshall then proceeded to fashion a test for evaluating prisoner allegations that their Eighth Amendment rights had been violated: Have prison officials shown “[1] deliberate indifference to[2] serious medical needs”?

Gamble was thus the first case to apply the Living Constitution’s “evolving standards of decency” double-talk to the medical care of prison inmates, via its new “deliberate indifference”/”serious medical needs” test.  That was bad enough.  Worse, is where the Gamble decision has led.

A decade-and-a-half later, the Court once again tinkered with the Eight Amendment’s Cruel and Unusual Punishments Clause.  The case was Hudson v. McMillian.[iii]  

As the result of a beating by guards, “Hudson suffered minor bruises and swelling of his face, mouth, and lip.  Blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.” 

Predictably, prison inmate Hudson sued for violation of his Eighth Amendment-guaranteed civil right to be free of “cruel and unusual punishments.”

In her opening paragraph for the Court’s 7-2 majority, Justice O’Connor wrote: 

This case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury.  We answer that question in the affirmative.[iv]  

Justice Clarence Thomas, in dissent, saw the matter differently:

In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious [an actionable civil wrong], it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment.

Thomas then explained his principal reasons for reaching this conclusion, and in those reasons we see the damage done to interpretation of the Cruel and Unusual Punishments Clause by Warren’s Trop v. Dulles starry-eyed formulation about “evolving standards of decency”—and the worse damage done to separation of powers doctrine, as the Court once again in Hudson sat as a Super Legislature.

First, Thomas wrote, “[f]or generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner.”  Indeed, Thomas reminded the majority, not until Estelle v. Gamble  in 1976 had the Supreme Court ever applied the Eighth Amendment “to a prisoner’s complaint for a deprivation suffered in prison.”

Next, Thomas explained that when the Court “cut the Eighth Amendment loose from its historical moorings and applied it to a broad range of prison deprivations,” the quid pro quo was creation of the new test: official culpability (subjective) and serious injury (objective) had to be present.

He went on to expose the Hudson majority’s abandonment of the “objective” prong of the test:

The Court announces that “[t]he objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency.” * * * In the context of claims alleging the excessive use of physical force, the Court then asserts, the serious deprivation requirement is satisfied by no serious deprivation at all.[v]                       [According to the Court,] “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” * * *  [According to the Court,] [a]scertaining prison officials’ state of mind, in other words, is the only relevant inquiry in deciding whether such cases involve cruel and unusual punishment.

Thomas disagreed, seeing “this approach [as] an unwarranted and unfortunate break with our Eighth Amendment jurisprudence.”

Justice Thomas’s Hudson dissent  underscores that abandonment of the objective component—“serious injury”—of the Eighth Amendment’s “conditions of confinement” test in prisoner cases, substituting instead the empty liberal bromide “evolving standards of decency.” The majority decision opens prison doors wide to baseless inmate complaints.  Inevitably, decision-by-bromide can only embolden the incarcerated population, cause prison wardens and guards to endanger themselves by altering their handling of prisoners, and clutter the courts with endless claims of “civil rights”/“cruel and unusual” violations.

This problem became evident during the Court’s next term, in a case entitled Helling v. McKinney.[vi]

A Nevada state prisoner, McKinney, sued his warden and other prison officials for violating the convict’s federal civil rights.  According to Justice White, author of the Court’s majority opinion, McKinney’s complaint

alleged that [he] was assigned to a cell with another inmate who smoked five packs of cigarettes a day.  * * *  The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked . . . and that certain cigarettes burned continuously, releasing some type of chemical . . . .  [Helling] complained of certain health problems allegedly caused by exposure to cigarette smoke.

Which of the inmate’s alleged federal constitutional rights were violated?  Naturally, his right to be free from “cruel and unusual punishments,” as guaranteed by the Eighth Amendment.  And not just free from immediate harm, but, as the Supreme Court read McKinney’s complaint, free from harm to the prisoner’s future health.[vii]

Again, Justice Thomas spoke for an interpretation of the Cruel and Unusual Punishments Clause that accorded with its original meaning, not the bloated interpretation given by the proponents of the Living Constitution, and one consistent with separation of powers doctrine.

He began by observing that in Hudson the Court had further expanded the Eighth Amendment by ruling that the provision is violated by a use of force causing only a minor injury.  Now, in McKinney, the Court was expanding the Cruel and Unusual Punishments prohibition even more to embrace only risk of injury.  Henceforth, under the Cruel and Unusual Punishments Clause, it would suffice for a prisoner to state a litigable claim simply by alleging that conduct by prison authorities caused (1) a mere risk of (2) minor injury.

Consistent with the only defensible approach to statutory interpretation, Thomas began with the words of the Eighth Amendment itself.  In doing so, he cut to the heart of the Supreme Court’s indefensible, anti-separation of powers, Cruel and Unusual Punishments jurisprudence:  The majority’s “decision, like every other ‘conditions of confinement’ case since Estelle v. Gamble . . . rests on the premise that deprivations suffered by a prisoner constitute ‘punishment’ for Eighth Amendment purposes, even when the deprivations have not been inflicted as part of a criminal sentence.” 

In other words, if the Cruel and Unusual Punishments Clause barred only cruel and unusual punishments, because McKinney had not complained about those punishments he had no civil rights case or any other.

Thomas then convincingly demonstrated that “[a]t the time the Eighth Amendment was ratified, the word ‘punishment’ referred to the penalty imposed for the commission of a crime. * * * That is also the primary definition of the word today.  As a legal term of art, ‘punishment’ has always meant a ‘fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him’.”  Thomas found no historical evidence to the contrary. 

Indeed, the “cruell and unusuall Punishments”[viii]  provision of the English Declaration of Rights of 1689, the “antecedent to our constitutional text,” was a response to sentencing abuses.

Nor, in the considerable discourse concerning the formation of the Constitution and creation of the Bill of Rights, was there anywhere a suggestion that the concern over cruel and usual punishments included harsh prison conditions.

As a matter of fact, Thomas noted, the Founders had an example they could have emulated if they were concerned with harsh prison conditions.  The 1792 Delaware (state) constitution expressly provided that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or[ix] unusual punishments inflicted.”  However, the Delaware constitution continued, as the Eighth Amendment does not: “and in the construction of jails a proper regard shall be had to the health of prisoners.”[x]   (From the perspective of constitutional interpretation, this historical fact is devastatingly convincing.)

In making these points, and by a surgical analysis of Estelle v. Gamble and its antecedent cases, Thomas was challenging the premise upon which the Supreme Court’s entire Eighth Amendment “conditions of confinement” jurisprudence had been built since Gamble was decided in 1976. 

Although the evidence is not overwhelming, I believe that the text and history of the Eighth Amendment, together with the decisions interpreting it, support the view that judges or juries—not jailers—impose “punishment.”  At a minimum, I believe that the original meaning of “punishment,” the silence in the historical record, and the 185 years of uniform precedent shift the burden of persuasion to those who would apply the Eighth Amendment to prison conditions.

The Supreme Court was at it again in the 1994 case of Farmer v. Brennan.[xi]   A preoperative male transsexual who projected feminine characteristics made a “deliberate indifference” claim based on having been housed in the prison’s general population, and there assaulted and raped.

For the first time since the Gamble ruling in 1976, the Court defined “deliberate indifference”: “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”  Because the Court believed the record from the trial court may not have adequately developed the facts, the case was remanded.

Thomas concurred with the remand, but his opinion reflects the concerns he expressed earlier in Hudson and Helling, and by implication about Estelle v. Gamble—concerns that should be shared by those who care about appropriate interpretation of the Constitution and the core principle of separation of powers. 

The Court was again, according to Thomas, “refin[ing] the ‘National Code of Prison Regulation,’ otherwise known as the Cruel and Unusual Punishments Clause,” which is inappropriately applied to anything other than judicial punishment.  What happened to Farmer—and it was certainly wrong—was not “punishment,” and thus the inmate, who may have had recourse under other laws, should have had no recourse under the Eighth Amendment.

Thomas did acknowledge, however, that “in approaching this case . . . we do not write on a clean slate. * * *  Beginning with Estelle v. Gamble . . . the Court’s prison condition jurisprudence has been guided, not by the text of the Constitution, but rather by ‘evolving standards of decency that mark the progress of a maturing society.’”  Although he “doubt[ed] that mode of constitutional decision making,” in the name of stare decisis he concurred in the Court’s judgment.  But “[i]n doing so, however, [he] remain[ed] hopeful that the Court will reconsider Estelle in light of the constitutional text and history.” 

If the Court ever gets into a reconsidering mood, it would do well to reflect on the structural allocation of separated powers that the Constitution provides, and take a step back from usurping legislative prerogatives under the guise of constitutional interpretation.        

Morrison v. Olsen[i]   

The Independent Counsel and the Chipping Court

The Law of Unintended Consequences was at work in the aftermath of the scandal known as Watergate, when the Ethics in Government Act of 1978[ii] was passed.  One provision of the Act created a mechanism for the appointment of an Independent Counsel, and in the process dealt a serve blow to separation of powers in general and to the power of the President in particular.[iii]

Under the Act, if the Attorney General of the United States learned of information that was “sufficient to constitute grounds to investigate whether any person [to whom the Act applies] may have violated any federal criminal law,” the AG had no more than ninety days to look into the matter.  Within that time, or if his preliminary investigation was completed sooner, he was required to render a report to a special panel of judges.  If the AG determined there’s a lack of “reasonable grounds to believe that further investigation is warranted,” that’s what he was obliged to report to the judges.  His decision not to go forward could not be challenged by the judges, nor was his decision reviewable by any court. 

On the other hand, if the Attorney General found “reasonable grounds to believe that further investigation is warranted,” he then applied to the special panel of judges for the appointment of an “independent counsel.”[iv]

If that happened, the judges then had to “appoint an appropriate Independent Counsel and shall define that independent counsel’s prosecutorial jurisdiction.”

In this case, Morrison was appointed Independent Counsel with the jurisdiction to investigate whether the testimony given by Olson to a House committee, and any matter related to that testimony, violated any federal laws, including the perjury statute.

 Eventually, a dispute arose between Morrison and the Department of Justice concerning the latter’s refusal to produce certain materials on the ground that they were beyond the Independent Counsel’s jurisdiction.  The judges ruled that the jurisdiction they had given Morrison did encompass the materials she had asked for.  Subpoenas were issued, and Olson moved to quash them on the ground that the Ethics in Government Act’s Independent Counsel provisions were unconstitutional.

             The federal district court upheld the Act’s constitutionality.

The United States Court of Appeals for the District of Columbia reversed, ruling that the Act, considered in its entirety, violated separation of powers.

 The Supreme Court reversed.  While there were several issues upon which the Court disagreed with the Court of Appeals, we’re concerned here only with the separation of powers aspect of the decision.

 The lone dissenter was Justice Scalia, whose opinion fully explains why the venerable principle of separations of powers was violated in the Morrison case, and why the Court’s decision was indefensible.  His reasoning explains why Morrison is on my list of the fifty worst Supreme Court decisions

Scalia began his dissent by positing a bedrock principle of American constitutionalism, one that predated the United States Constitution itself:

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Building his argument, Scalia then invoked the Framers, especially Madison who wrote in Federalist 47 regarding separation of powers that: “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.”  

 Justice Scalia then noted, as had Madison some two hundred years earlier, that even within the legislative branch the Congress itself reflected a separation of powers because that body was divided into two, the members of which were selected differently and the powers of which differed considerably.[v] 

 Not so the President’s powers under Article II.  There is no textual dilution of his power, although during the framing of the Constitution there were proposals to do just that by having more than one executive or a council of advisors.

 Having laid this groundwork, elaborately, Scalia then bluntly named what Morrison v. Olson was all about: in a word, “Power.”  But more than that, Scalia recognized that a separation of powers issue can come to the Court “clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

 How so?

  Because, according to Scalia,

by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.[vi]

 It’s hard to argue with Justice Scalia’s recitation of the case’s facts.  Under the Act, it is virtually impossible for the Attorney General not to deem further investigations unwarranted, and once that happens and an Independent Counsel is appointed virtually everything that follows is effectively “beyond the control” of the Executive Branch, i.e., beyond “the President and his subordinates.”  Indeed, Scalia made the point that merely to describe the facts of the case is to decide it, else, he wrote, “the concept of a government of separate and coordinate powers no longer has meaning.”

Adverting again to Article II, Scalia reminded the Court’s majority that the Constitution vested the executive power in the President:  “As I described at the outset of this opinion,” Scalia wrote, “this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld [as the Supreme Court did not] on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?[vii]

 No one can argue with the answer to Scalia’s first question.  It is manifestly “yes”—so much so that the Morrison majority did not, indeed could not, refute it.  Scalia continued:

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute . . . .[viii]

 For Scalia, and others who believe that separation of powers means that true executive power under Article II of the Constitution remain vested in the President, the majority’s recognition that in the Act Congress had deprived him of power should have swung the decision against the law’s constitutionality.  As Scalia put the point,

it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that ‘[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.’ * * *  It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether ‘the President's need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch’ as to require complete control . . . , whether the conferral of his powers upon someone else ‘ sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws’ . . .  and whether ‘the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties” . . .  .  It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.[ix]                  

 It is understandable that the majority was unable to answer Scalia’s arguments, rooted as they were in facts about what the Act said and how it operated, and rooted as well in the majority’s own concessions. 

  Nor did the majority deal with another salient point Scalia made: that the Court would have no difficulty finding a separation of powers violation if, for example, even a smidgen of judicial power was handed off to another branch of government—and no inquiry would be made about whether the Court retained sufficient other judicial powers.  Article III requires all judicial powers to be vested in courts, and that’s that.

But a nibbling away at the power of the President, which we’ll see in the other cases discussed in this section, was acceptable to the Court—and Scalia’ eloquent final lament would not move his colleagues:

A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law.  It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of.  Taking all things into account, we conclude that the power taken away from the President here is not really too much.  The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much.  That opinion, like this one, will not be confined by any rule. * * * This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President.

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential.  It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law.  The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”[x]  

 Predictably, Justice Scalia’s warning came true not only in Clinton v. City of New York, considered next, but in three recent decisions, considered below—decisions that were bad enough in themselves, but which beyond that reveal unbridled judicial arrogance impinging on textual and traditional presidential powers and, because they deal with Islamic terrorism, portend a dangerous threat to America’s national security, indeed its very survival.

 ___________________ 

 [i] 487 U.S. 654 (1988).

Two years after this case was decided by the Supreme Court of the United States, George W. Bush was elected President.  Even though the spending binge that ensued substantially increased the deficit, not once did President Bush veto a money bill, even though many of them were unconscionably bloated with pork.

To understand the Clinton case and its consequences, it’s necessary first to look back into history.

In 1787, when the Constitution was promulgated, the idea did not exist that the President would possess the power to veto specific items in a bill sent to him by Congress.  The simple reason is that at the nation’s birth, unlike today, “the problem of unrelated bills and riders, did not exist.  Shortly before the Civil War, Congress first began the practice of attaching appropriation riders to bills.  Then, the term ‘rider’ was developed, along with its corollary ‘line item veto’.”

Thus, in those days when a bill was sent from Congress to the President it dealt with a specific subject (e.g., the Alien and Sedition Acts), and the legislation was not burdened with unrelated expenditures or riders—like the disgraceful Alaska Senator Ted Stevens’s 2007 “bridge to nowhere.”  Until about the mid-nineteenth century, President Washington and his successors could approve or disapprove a bill on its merits without having to consider collateral financial issues having nothing to do with the substance of the bill.

The vice of adding riders to bills is readily apparent.  It puts the President in an all-or-nothing position.  If he approves the bill, he’s also approving the pork.  If to kill the pork he vetoes the bill, the substantive legislation goes down with the tacked-on pork.[ii] 

The Line Item Veto Act was aimed at eliminating that problem, by allowing the President to cancel specific items related to Congressional appropriations.  Specifically, the Act gave the President power to cancel items of new direct spending, and it expressly specified that a presidential cancellation nullified that provision.

In its 1997 term, the Supreme Court ruled that Members of Congress lacked sufficient personal interests to satisfy the “standing to sue” requirements of Article III, in their constitutional challenge to the Act.

Soon after, President Clinton exercised the authority given him in the Act by cancelling a section of the Balanced Budget Act of 1997, “which waived the Federal Government's statutory right to recoupment of as much as $2.6 billion in taxes that the State of New York had levied against Medicaid providers, and § 968 of the Taxpayer Relief Act of 1997, which permitted the owners of certain food refiners and processors to defer recognition of capital gains if they sold their stock to eligible farmers' cooperatives. Appellees, claiming they had been injured.”[iii]

Challenges to the cancellations were brought by the City of New York, two hospital associations, a hospital, two health care employee unions, a farmers’ cooperative, and one of its individual members.

When the case reached the Supreme Court the second time, in several different opinions it ruled that the new plaintiffs had standing to sue and that the cancellation provisions in the Act violated the “Presentment Clause” of the Constitution, which provides that: “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States . . . .”[iv]

The Court’s reasoning was that “in both legal and practical effect, the Presidential actions . . . amended two Acts of Congress by repealing a portion of each.” 

Although under Article I Congress has the constitutional power to amend or repeal statutes,

                    "there is no constitutional authorization for the President [v] to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it,” i.e., “veto” it, if he does not. There are important differences between such a “return” and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of Presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself.  Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” * * * What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses."[vi]

 In other words, the Court ruled that, in effect, the Act gave the President power to make law, by exercising his statutorily-granted power to cancel law enacted by Congress—a power at odds with the text of Article I and the understanding of those who promulgated it.[vii]   As a result, a statute enacted by Congress and signed by the President—the Line Item Veto Act—was declared unconstitutional by the third branch of government, the Supreme Court of the United States.

The three dissents saw the matter differently.

Justice Scalia, joined fully by Justice O’Connor and partly by Justice Breyer, was one of the dissenters.  Although Scalia discussed at length the standing to sue issue—concluding that some plaintiffs possessed standing, while others did not—his major contribution was on the merits.  He wrote that he “would hold that the President’s cancellation of Section 4722(c) of the Balanced Budget Act of 1977as an item of direct spending does not violate the Constitution.” 

Scalia reached his conclusion by beginning with the language of the Presentment Clause: ““[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes 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.”

 For openers, that was enough for Scalia: “There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill and the President signed it into law.  It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item.  Thus, the Court’s problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes him to “cancel”— prevent from “having legal force or effect”—certain parts of duly enacted statutes.”

 Scalia was making an important point.  The case was not about the Presentment Clause at all (because it had been complied with), but rather about whether in giving the President the power to cancel, Congress had delegated to him too much power—power that constitutionally had to repose only in the legislature.  As Scalia put it, “the crux of the matter [is] whether Congress’s authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch.”  Scalia’s answer was “no”:

                    "The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional.  What the Line Item Veto Act does instead—authorizing the President to cancel an item of spending—is technically different.  But the technical difference does not relate to the technicalities of the presentment clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities.  The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.  The President's action it authorizes in fact is not a line-item veto and thus does not offend Article 1, Section 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union."[viii]
 

Justice Breyer, joined by Justices O’Connor and Scalia, also dissented on the separation of powers issue.  Breyer “recognize[d] that the Act before [the Court] is novel.  In a sense, it skirts a constitutional edge.  The means chosen do not amount literally to the enactment, repeal, or amendment of a law.  Nor, for that matter, do they amount literally to the “line item veto” that the Act’s title announces.  Those means do not violate any basic separation-of-powers principle.  They do not improperly shift the constitutionally foreseen balance of power from Congress to the President.  Nor since they comply with separation-of-powers principles, do they threaten the liberties of individual citizens.  They represent an experiment that may, or may not, help representative government work better.  The Constitution, in my view, authorizes Congress and the President to try novel methods in this way.

At the end of the day, however, the majority for unconstitutionality prevailed.

As a result, the Clinton case stands as an example of how faulty analysis of the issue presented to the Court, and an equally erroneous resolution of that issue, resulted in a hyper-technical application of the separation of powers principle.

The vice of the Clinton v. New York decision is that henceforth the join adjustments of power between the political branches of government—legislature and executive—will not only be viewed suspiciously by the Supreme Court, but will in the bargain be subject to nullification by the judicial branch.

It looks like Orwell was right again—some branches are more equal than others.

Pre-September 11, 2001, our nation could survive an unchecked judiciary.  Now, however, it is a very different story.

  ___________________________

[i] 524 U.S. 417, 118 S.Ct 2091 (1998).

[ii] See Nowak and Rotunda, Constitutional Law (seventh edition) Section 7.16, (henceforth, “Nowak and Rotunda”).

[iii] This quotation and others that follow in this chapter, unless otherwise indicated, are from the Supreme Court’s Reporter of Decisions’ Syllabus.

[iv] Article I, Section, Clause 2.