| Over the past month and a half, the Supreme Court has heard oral arguments in two extremely important disputes involving presidential authority: last month’s arguments in the cases involving President Donald Trump’s assertions of very broad power to impose tariffs under the International Economic Emergency Powers Act (IEEPA), and last week’s arguments in the case involving whether Congress’s limitations on the president’s power to remove members of the Federal Trade Commission (FTC) violate constitutional separation of powers principles. While the contexts of the two disputes (and the president’s chances of winning) are different, both litigations share a common and crucial question: how reluctant should the Court be to construe federal statutes so as to confer very broad presidential power, given that legislative attempts by Congress to retrieve such power will most likely be met by a presidential veto that would require a supermajority of Congress to override? | | I have called this issue, in both academic writings and amicus brief submissions, the “retrieval” or “reclamation” problem. In a 1996 law review article (that I wrote when a Democrat was in the White House) focused on the non-delegation doctrine (i.e., the notion that legislative power that the Constitution confers on Congress cannot be alienated to another body), I argued: | Because of the Presentment Clause [of the Constitution, which gives the President the power to veto congressional bills], Congress’s ability to reclaim broad authority delegated to the President may require more than just agreement of a majority of both Houses. Retrieval might require a super-majority of both Houses if the President rebuffs the retrieval attempt. In other words, the veto possibility is a substantial impediment to the retrieval of power by Congress.
Worse yet, this impediment is in the hands (the pen-holding hand, to be more precise) of the beneficiary of the delegation! . . . [The President thus] wear[s] two hats[:]. . . . recipient of delegated authority and participant in decisions about its retrieval. [Because of this] two-hat problem of congressional retrieval, we should be especially wary of congressional delegations to the President . . . [inasmuch as] while it may . . . take [only] a majority of both Houses to give power to a President, the same bare majority may not be able to override a presidential veto of congressional attempts to take back that power.
[Because of this asymmetry], [b]road delegations to the President are . . . [particularly] problematic [under non-delegation principles]; the President’s dual role . . . creates the very real potential that lawmaking power is ceded in such a way that Congress’s ultimate power to make laws is [impermissibly] diminished.
| | I drew and built on this this analysis in an amicus brief that I and former Congressman Mickey Edwards filed in the IEEPA cases; we argued that the Court should construe IEEPA’s conferral of power to the president narrowly rather than broadly, precisely to avoid the prospect of a conferral of legislative power that cannot easily be retrieved and that thus might violate non-delegation principles. Happily, it appears as if (at least some of) the Justices understand and appreciate this line of argumentation: Justices Neil Gorsuch and Amy Coney Barrett in particular asked many questions at oral argument focused on the “retrieval problem” and the “one-way-ratchet,” (the notion that, because of the asymmetry between the simple congressional majority required to confer power and the supermajority needed to claw it back, power tends to flow from Congress to the president but rarely vice versa), conceptual terms that our amicus brief employed and explored, but that no other briefs in the case mentioned. | | In last week’s FTC argument, the “retrieval” problem entered the analysis in a somewhat different way. Unlike the IEEPA case, the central question in the FTC matter is not how best to construe a federal statute—the statute at issue quite plainly limits the president’s ability to remove FTC Commissioners at will—but instead whether the statute, clear on its face, violates the president’s constitutionally granted authority to oversee “the executive Power” and “take Care that the Laws be faithfully executed.” The Court’s answer to that question, especially given the robust and core executive authority the FTC currently enjoys, is almost certainly likely to be “yes.” That is, the statute’s provision limiting the president’s power to remove commissioners is almost certainly going to be found to be unconstitutional. | | But that tees up the often-vital but frequently under-analyzed remedial question of what to do with a statute that includes unconstitutional components. There are at least two primary options: strike the whole FTC statute down, eliminating FTC authority and sending the whole matter back to Congress; or surgically excise the statutory limitations on presidential removal, leaving intact the rest of the statute, including the broad regulatory and enforcement powers enjoyed by the FTC. This choice is sometimes referred to by the Court as a matter of “severability” with respect to the enacted provisions of a statute (although that label obscures the prospective nature of the question), and requires the Court to consider which remedy best accords with what Congress would prefer. As Professor Evan Caminker has reminded, fashioning a prospective remedy to deal with a statute that contains unconstitutional parts should also take account of constitutional values and themes. And here is where the retrieval problem and the asymmetry issue arising from the presidential veto power come back into play. If the Court excises the provisions on presidential removal authority but leaves the FTC’s broad powers intact, and Congress would prefer not to confer such broad powers to the president unless his removal powers are limited, Congress will likely be unable to repeal the FTC’s powers unless it has a supermajority to override an expected presidential veto. By contrast, if the Court invalidates the whole FTC statute, and Congress wants to continue to confer broad FTC authority even though the president’s constitutional power of removal cannot and will not be impaired, a simple majority of Congress can enact such a law and a willing president will sign it. | | Because Congress’s inclusion of removal limitations in the first instance suggests it is uncomfortable with broad FTC powers when the president fully controls the agency, and because (on account of constitutional structure) limiting FTC powers through a subsequent bill would likely require a congressional supermajority to override a veto, there is a compelling argument, suggested at oral argument by Justice Elena Kagan, that the proper remedy (assuming the Court finds the limitations on presidential removal to be unconstitutional) would be to invalidate the whole statute, sending things back to Congress to decide how much power to confer to the FTC knowing that commissioners are fully subject to presidential removal. | | Limitations on presidential removal aren’t the only kinds of devices (or strings) Congress has employed when it is uncomfortable about the way the president might exercise power that has been statutorily created. Another such device is the so-called legislative veto, a procedure by which one or both houses of Congress can block particular actions by the executive branch when executive officials have sought to enforce a statute. Such legislative vetoes were properly invalidated as unconstitutional in the seminal 1983 INS v. Chadha case. But, as I wrote in 1996, even though the Court was right on the merits in Chadha, the Court botched things at the remedy/severability phase: | INS v. Chadha—the legislative veto case—is also instructive on . . . these important separation of powers issues. At a most basic level, the invocation of the legislative veto is itself a recognition by Congress that delegated power may not be easy to retrieve. Not all defensive tactics, of course, are constitutional. On the merits of the constitutional question presented, the Court correctly held that bicameralism and presentment are required before Congress can act to make law [lest legislative power be impermissibly delegated to a single House of Congress.] In holding that the unconstitutional legislative veto could be severed from the statute granting the INS authority, however, the Chadha Court goofed. Given the concern expressed by Congress about reclamation [by inserting the legislative veto in the first place], why would we believe that Congress intended to confer the authority without the (now unconstitutional) string? It is one thing to deny Congress the weapon it has chosen; it is another to deny that Congress is worried about its opponent. Moreover, if the Court turns out to be wrong in holding the veto severable, a majority of each House cannot reclaim what it has given, unless it can override a presidential veto. On the other hand, if the Court erred in the other direction, then Congress could have fixed any mistake more easily.
| | So just as the most appropriate remedy when finding statutory limitations on presidential removal to be unconstitutional may very well be to invalidate the entire statute, so too the best remedy when finding legislative vetoes to be unconstitutional is very often invalidation of the entire statute conferring executive power in the first place. Unfortunately, courts have never gone through each statute that contains an impermissible legislative veto to decide whether the whole statute ought to be thrown out. Instead, following Chadha, courts have tended to simply excise the legislative veto provisions and leave presidential powers intact. In fact, the IIEPA itself, as originally enacted in 1977, contained a legislative veto that became unenforceable six years later, after Chadha. There is thus a powerful argument that the entire IEEPA should have been remanded to Congress for a do-over. At a minimum, in addition to the non-delegation concerns in the IEEPA case that my amicus brief with Congressman Edwards addresses in great detail, another basis for construing IEEPA narrowly rather than broadly is the common-sense notion that Congress’s inclusion of a legislative veto in IEEPA in the first place suggests Congress was uncomfortable with broad, unfettered presidential powers in that realm. | | The big takeaway is that the president’s veto power, the “retrieval problem,” the resulting “one-way ratchet,” and the related asymmetry between congressional conferrals of executive power, on the one hand, and congressional reclamations of it, on the other, are core, if often overlooked, features of constitutional structure that should inform the proper resolution of many of today’s most contentious and critical separation of powers disputes. |
|
Have friends who like law? Forward this email. 
Like Verdict for legal discussions on Facebook. 
Follow @verdictjustia for news and updates on Twitter. 
