Today in Supreme Court History: October 7, 1982

10/7/1982: I.N.S. v. Chadha was argued.

Comments

[Dan Schiavetta]

Doe v. Gonzalez, 546 U.S. 1301 (decided October 7, 2005): Ginsburg denies emergency stay because appeal in Second Circuit is being expedited, but grants motion to file briefs under seal; discusses the case at length; librarian contested FBI order to disclose browsing history associated with a certain IP address which also ordered him not to reveal order or reveal his identity; issue was whether this prior restraint (authorized by statute) violated First Amendment; identity had already been inadvertently revealed by District Court web site and PACER (case was dismissed as moot, 449 F.3d 415)

[apedad]

Re: I.N.S. v. Chadha

Facts of the case In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General. Chadha had stayed in the U.S. past his visa deadline. Though Chadha conceded that he was deportable, an immigration judge suspended his deportation. The House of Representatives voted without debate or recorded vote to deport Chadha. This case was decided together with United States House of Representatives v. Chadha and United States Senate v. Chadha.

Question Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?

Conclusion (7 – 2 decision) The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the “explicit constitutional standards” regarding lawmaking and congressional authority. (Oyez)

Agree with the decision as the law gave Congress authority to make executive decisions.

[Dan Schiavetta]

Burger’s concession reveals why our system is now so dysfunctional. The “legislative veto”, he admits, was an efficient idea. It was torpedoed by mindless obedience to an old document. It reminds me of how the Catholic Church hierarchy feels bound by old rules as to forbidding contraception and allowing only men to become priests.

Britain has an unwritten Constitution, developed over centuries, based on “what works”. We are riveted to a written Constitution based on what a group of white men in 1787 guessed what “might” work. We are increasingly seeing the result.

[Mr. Bumble]

What a burden that 233 years on the US continues to suffer under a constitution written by "white men". I'm sure we would have been much better off under an un-written "constitution" like Great Britain's (of course also developed by white men) or endured the enlightened government of France that followed their revolution.

[Michael P]

He would much prefer the efficient government of China or the Soviets. No procedural rules or boundaries, no separation of powers, just leftists stamping on a human face, forever.

[Krychek_2]

Right, because the only two alternatives are the current Constitution, or China/Russia. There couldn't possibly be any other alternatives except those two.

[Krychek_2]

I don't personally care that the Constitution was written by white guys. I do care that large parts of it were written for conditions and circumstances that no longer exist, and assumptions that a lot of Americans no longer share, and survives only because the amendment process is so cumbersome.

In property law there is something called the "rule against perpetuities" which basically means that there is a limit on the extent to which dead people can still run things. Perhaps constitutional law needs some kind of equivalent.

[Bob from Ohio]

"“rule against perpetuities” which basically means that there is a limit on the extent to which dead people can still run things."

"basically" LOL

I hope you don't do real estate.

[Dan Schiavetta]

It's a correct statement of the general principle. To be a little more precise, the dead person can only reach 21 years into the future.

[Bob from Ohio]

"dead person can only reach 21 years into the future"

Wrong. Really, really wrong.

[Dan Schiavetta]

Let me educate you.

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

[Bob from Ohio]

"after some life in being"

So, not 21 years.

If you had a bequest in 1927 tied to a then living descendant of Queen Victoria, it will not vest until 2043.

[Krychek_2]

This sidetrack is all very interesting, but my actual point is that the rule stands for the proposition that there is an outer limit on how long dead people get to run things. A sound rule for property law, and a sound rule for constitutional law.

[Mr. Bumble]

The Constitution is not a will but a continuing agreement of "We the People" and not just those who drafted it. In anticipation of the need for changes it provides for a method of amendment.

By your logic at a certain point after all of the people alive at the time of ratification had died, the Constitution would become void.

[Krychek_2]

Except it's not a continuation of we the people, because we the people now have very different ideas about what the federal government should be than the framers did. Much of the Constitution would not get the necessary 2/3 of Congress and 3/4 of the states today, but the necessary majorities aren't there to change it either, so we're stuck with it by inertia.

“It is revolting to have no better reason for a rule of law than that so it was laid down in the line of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” Oliver Wendell Holmes

[Dan Schiavetta]

That was my point.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Much of the Constitution would not get the necessary 2/3 of Congress and 3/4 of the states today, but the necessary majorities aren’t there to change it either, so we’re stuck with it by inertia.

And your fix is to put you in charge of rewriting it?

[The Margrave of Azilia]

It was dead people who gave us the 16th Amendment.

If the Constitution is alive and no longer tied to what some dead guys thought, why not declare the income tax unconstitutional?

Why not ignore the 17th Amendment – adopted by dead guys – and go back to state legislatures selecting Senators?

Or the 22nd Amendment - why not let the same guy be elected to several consecutive Presidential terms? I suppose some of the supporters of the 22nd Amendment are still alive, but most of them have gone to their reward by now. Today we moderns recognize the value of having a long-serving executive, right?

[Krychek_2]

Did I say my fix would be to put me in charge of re-writing it?

I'm not sure this problem has an actual solution, given that any re-write would require 3/4 of the states to go along, and I doubt that 3/4 of the states would agree on much of anything. If I could go back in time I'd be happy to have a chat with the framers about some recommendations I might have, but what's done is done. Further, both parties have the ability to block the other from doing much, but not the power to actually accomplish anything on their own.

So what's going to happen is that Congress and the courts will do what they've been doing for the past 75 years, which is to find workarounds, creative interpretations, and do re-writes in all but name. And no, I'm not enamored of that solution either, but one works with what one has. And it's what we the people want, at the end of the day. The originalists can just try shutting down social security; you'll see an uproar the likes of which haven't been seen in the lifetime of anyone here.

[Michael P]

Congress won't pass substantive legislation or provide detailed regulatory guidance to the executive branch. It delegates all that to the executive. Until it can do its own job on the regular, it shouldn't arrogate the executive's functions to itself.

[Bob from Ohio]

"written Constitution"

Amend it, there is even a procedure in the Constitution to do so.

"white men"

Self loathing is bad. Get therapy.

[David Nieporent]

Your criticism overlooks the fact that the people who wrote the old document did not come up with some dumb idea that turned out to be inefficient and now we're stuck with it. They expressly chose not to optimize on efficiency. (Or, to put it another way: feature, not bug.)

[Dan Schiavetta]

The Framers’ aim was not to clog up the works (which would be pretty stupid; after all, they were replacing the extremely clogged-up Articles) but to make sure power didn’t get centralized, particularly in the executive.

Chadha invalidated more than 200 laws where Congress could exercise a “legislative veto”. These eliminated the need for the legislative process (propose bill, report out of committee, reconciliation, submit to President for signature) to be started over and over again whenever a new situation arose. Such an arrangement did not hinder the functioning of the federal government; as Burger conceded, it actually aided it. And by the way it hardly affected the centralization of power.

[The Margrave of Azilia]

So, why not a constitutional amendment?

See if 2/3 of Congress and 3/4 of the states are willing to let each house of Congress give the smackdown to bureaucratic overreach. I suspect it could happen. Why not?

[David Nieporent]

The Framers' aim was indeed to "clog up the works." They didn't accidentally choose bicameralism and presentment, not realizing the effect it would have; they deliberately chose it, knowing it would make it harder for the government to act.

[Dan Schiavetta]

They chose bicameralism and presentment because they were working from the British model, with its House of Lords and House of Commons, and legislation presented to the monarch for signature. They did this not just out of habit but because they really thought the British system was pretty workable (their main gripe was that insofar as the Colonies were concerned it was “taxation without representation”). Their main problem was how to adapt the system to a land without a monarch and without a landed aristocracy.

[David Nieporent]

You're not contradicting what I wrote.

[The Margrave of Azilia]

"It was torpedoed by mindless obedience to an old document."

On a matter like this, touching on Congressional privileges, what would have stopped Congress from proposing a constitutional amendment? And why not put it to the states directly - with "conventions" playing the same rubber-stamp role as Presidential electors to ratify what the voters in a particular state decided (as with the 21st Amendment).

Maybe the voters would have been sympathetic with a campaign based on making it "easier to overrule the dumb decision of some dumb bureaucrat." Can't you see the campaign commercials?

We're so used to amendments by usurpation that our constitutional-amendment machinery atrophies. From time to time, some Congresscritter makes a show of offering an amendment, everyone has a laugh, and it's forgotten.

If interpretation was more stable, maybe Congress would wake up and take its amendment responsibilities more seriously.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Wouldn't it also have been a bill of attainder?

[Dan Schiavetta]

One wonders . . . what clerk subconsciously thought "the FBI can't make this guy disappear!" while accidently forgetting to block out his name before posting.