In our final episode of Season 1, Will is joined by the newest UChicago Law professor, Curt Bradley, to discuss INS v. Chadha: a transformative case that invalidated the "legislative" veto almost forty years ago. They discuss the formal and functional separation of powers, and the surprising possibility that it wasn't really so transformative after all. This episode also features a look at the scholarship of then-Senator Joseph Biden. Happy Constitution Day!
In our final episode of Season 1, Will is joined by the newest UChicago Law professor, Curt Bradley, to discuss INS v. Chadha a transformative case that invalidated the "legislative" veto almost forty years ago. They discuss the formal and functional separation of powers, and the surprising possibility that it wasn't really so transformative after all. This episode also features a look at the scholarship of then-Senator Joseph Biden. Happy Constitution Day!
Case audio is from Oyez.org
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude. And each episode I discuss with top legal minds, a Supreme Court case they believe is misunderstood.
[David Currie Audio]: Every 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.
[Case Audio]: Thank you, gentlemen. The cases submitted, we'll hear arguments next to Immigration and Naturalization Service against Chadha and the consolidated case.
Will Baude: So we're releasing this episode on Constitution Day, as our way of celebrating that holiday. And I'm here with my newest colleague, Curt Bradley, a constitutional law, separate powers, federal courts, foreign relations law superstar, who has many interesting views, but a lot of things, but one of these we're going to talk about is a mainstay of the constitutional law curriculum. INS vs. Chadha. So welcome, Curt.
Curt Bradley: Thank you so much Will, it's really a pleasure to join you and talk about the case.
Will Baude: I'm excited too. So the way we usually do this is sort of just the first make sure everybody's on the same page about what the case is, basically, and what it did, and what the kind of conventional wisdom about the cases, and then get into why that conventional wisdom might see something, and where else that takes us. So can we start there, so what is this case? I think all students have had my constitutional law class know the answer, and most people who are not lawyers will not know the answer.
Curt Bradley: Sure. So it's a 1983 decision by the Supreme Court, it's INS v. Chadha. Immigration, Naturalization Service versus Chadha. And the Supreme Court held in the decision that so called legislative veto provisions are unconstitutional. And so I should say a word about what those provisions are. There are provisions in the statute, and part of the statute gives the executive branch maybe an administrative agency, or maybe the president, authority to do something that the President of the agencies might not have had the power to do without the statute.
But the provision also says that if Congress disagrees with what the executive does in exercising that authority, they can override it. But without having to pass a new statute. And these legislative veto provisions might just require a majority vote in one of the two houses of Congress, for example, or maybe both houses, but without having to present a new piece of legislation to the president, which might be vetoed.
And in theory, this is a way for Congress to have an easier method of overturning exercises of its delegated authority, rather than having to pass an entire new legislative act, if it disagrees with what the executive is doing. And these provisions started appearing in statutes in the 1930s. In the Hoover administration, they substantially increased in numbers during the 1970s. And kind of in the years leading up to the Chadha case.
Part of the interesting story is the interactions between what Congress is doing here, and what the executive was doing, because many of these provisions were in statutes that the executive did sign into law President sign them into law, frequently under protest, they would issue signing statements and they're saying they had misgivings about the constitutionality of these provisions, but they nevertheless made it their way in the statutes.
And by the time of the Chadha case, in the 90s, the 1983. There were over 200 or so of these provisions in different statutes. So they really had proliferated throughout the code, and the one in Chadha. Concerned immigration, It was a provision in the Immigration and Nationality Act, that on the one hand, the statute allowed the executive to suspend deportation of individuals who otherwise were subject to deportation for various reasons.
But then one of the two houses of Congress if they disagreed with the suspension of deportation, had the ability to vote to overturn the suspension and therefore cause the person to be deported. And that's exactly what happened in the Chadha Case. Chadha came to the United States as a student college, student who overstayed his visa, and was then being subjected to deportation proceedings. He sought from the immigration service and the executive suspension of deportation on the grounds that it would cause him extreme hardship.
And he won, in the executive branch before an immigration judge. And it looked good for him, it looked like he was on a path to permanent residency. But a year and a half later, a majority in the House voted to overturn his suspension of deportation and five others in a group they had specified and then he was going to be deported.
He then took the case all the way up to the Supreme Court and managed to win, getting the court to agree that in fact, the Congress should not have the ability to exercise one of these vetoes through something other than a new act of legislation base stands for their proposition, in effect that Congress can't overturn an executive act without passing a new statute you can't reserve to itself some other mechanism, or like one of these provisions.
Will Baude: And the opinion sort of reads wondering as I like to teach it, is the opinion reads a sort of a math textbook, it makes it seem it's a really simple application of formalism and Article One of the Constitution, how does Congress get to do something by passing a power bill becomes a law, you need the house in the Senate, the president in here, they didn't do that. And so of course, it's unconstitutional, which is fine. So what's wrong with that?
Curt Bradley: Well, they do sort of make it mathematically oriented in the sense that they say there's a process in Article One, particularly section seven, it talks about a requirement of two houses of Congress plus presentment, to the President. And obviously, this particular veto exercise against Chadha did not follow that process.
It's a little more complicated that, for one reason, Article One, Section seven says that bills have to go through by bicameralism and presentment, this wasn't labeled a bill, you'd have to then figure out what exactly a bill is. And not everything, obviously, that happens in Congress is a bill that might be all sorts of things that Congress does internally that are not bills, and therefore don't go through the bicameralism and presentment.
And the, but maybe a bigger complication is that there was a piece of legislation here that did go through, two houses of Congress and presentment to the presidency Immigration Act itself, that contains both the grant of authority to the executive and the veto provision, those did make their way through as a bill and got article one section seven process applied to them. So it's a little more complicated than just a look taking a look at it and saying, Something's happened here.
That didn't go through two houses of Congress and presentment. And maybe the hardest element of that, I think, is what to make of the fact that Chadha was subject to deportation. And that changed, because something happened in the executive branch, that change, that his status that did not go through Article One, Section seven, either. And yet the court doesn't really question that change, that change can happen without new legislation, and yet it singles out the subsequent change back that happened in the house.
And I think that makes it a more complicated issue. When I listened to the oral argument again, the other day, I was struck by what I think was actually a brilliant advocacy by the Solicitor General Rex Lee at the time, who in the first arguments actually argued twice, interestingly, in the Supreme Court, but in the first argument, most of the interesting questions happen Rex Lee, started his argument by trying to address that dilemma, of how is it that it's okay for the executive to do this change in status without going through legislation, but not okay for the House of Representatives to do it? And he just came right out of the box with an attempted answer to that question.
[Case Audio]: Any attempt to defend the constitutionality of a legislative veto basis, I submit an insoluble dilemma. And the reason is that there are two separate constitutional demands that the device has to satisfy. They are first the twin requirements for lawmaking specified in Article One of the Constitution, passage by both houses of Congress, and presentation to the President.
And the second is separation of powers. And now the dilemma. Any attempt to explain a legislative veto in such a way as to blunt the separation of powers problems, that this is not really enforcement of the law, or this is not really interpretation of the law, only serves to highlight the fact that whatever else may be involved, Congress is clearly exercising legislative power, making new law, and is doing so by one house of Congress, and without participation by the President.
Curt Bradley: And I think one of the first questions from the bench was Justice Stevens, who was primed with that very question. But already the momentum of Stevens, questions was undercut a little bit by the fact Rex Lee, had already anticipated it. And his answer, in essence, was delegating to the executive branch is just subject to the non delegation doctrine, which throughout much of history has been kind of weakly enforced. And that we call that really executing the law, interpreting the law, enforcing the law within the executive branch.
And if you want to call it that, when it happens in the house, the Solicitor General said, you have a problem, because Congress is not allowed to execute the laws. It's not an article one section one seven problem, it's just a problem of separation of powers. But if you think what happened in the house is different than it is a piece in effect of new legislation. And he basically said you have a dilemma. It's either unconstitutional at one ground or another.
[Case Audio]: The only way that Congress can act is by legislation. If section 244 C two then of the immigration 19 act is not legislation, then Congress lacks the constitutional power to do it. And if it is legislation, then the bicameralism and the presentation requirements must be met. For that reason, you don't need to characterize it, as either legislation, or not legislation.
Because the one thing that is clear is that it is something that Congress has attempted to do. If Congress, if it is legislation, then by bicameralism and presentation must be complied with. If it is not legislation, then Congress lacks the authority to do it.
Curt Bradley: Whether you're persuaded by that or not, it struck me as a very smart move by an advocate to figure out what's likely to be the hardest question, and just come right out and try to start framing the answer to it. And obviously, that position did prevail in the court, Rex Lee's position, 72 was the vote. So it wasn't that close. So maybe in that sense, it did seem fairly clear to most of the judges, I would say it's really more like a one.
Because one of the two dissenters was a Justice Rehnquist, who was really just descending about severability, not about the merits here. And so it's really only Justice White, who disagrees with the unconstitutionality of legislative vetoes. So you have a bench that has conservatives and liberals, largely agreeing at the end of the day that this legislative veto in the house is a problem.
Will Baude: Not listen to the argument I wish I had. I agree with you that's a, it's a move that only really confident advocates feel comfortable doing is just beginning the argument by exposing their underbelly, although if you can do it, well, that's a good idea. So I think that defense sort of formalist defense, that this is really about delegation executive power works perfectly, until a few years later, when the court decides Mistretta.
Mistretta upholds this delegation of power to the judicial Sentencing Commission, which is not an executive branch over the challenge, Justice Scalia, I guess makes exactly this point in dissent and says, look, it's fine to have broad delegations, the executive branch, but you can't have broad delegations to people who are not in the executive branch. And the courts as well, we don't care about that.
Curt Bradley: Yes, I agree. I think the court has not been perfectly consistent on this argument that had been made by Rex Lee, I nevertheless, do think that the charter decision has, there's something to the distinction between delegations, outside of Congress and inside. And one of the things as I started learning more about kind of what's happened after Chadha, is and sort and also sort of how the vetoes were used prior to Chadha.
And if you think about the Chadha litigation itself, one of the problems with delegating to the execution of a statute to say a committee, or one house of Congress is really have no overlay of any administrative law there, it just disappears. So if you delegate to one of the administrative agencies, we've sort of recognized since the new deal that this is a lot of where a policymaking gets done in the United States. And there are a variety of Administrative Procedure Act provisions, and other provisions that try to govern that, there's judicial review, in many instances over the exercise of this delegated authority.
When Congress delegates to a subunit of itself, we really lose a lot of that kind of overlay of legal protection. And the Chadha case is a probably this is one of the reasons why there was such a consensus in the case, it was such a strong case, for this being a problem. On the one hand, you have an immigration judge in a statutory scheme, administering it, applying legal factors, hearing evidence, and at the end of it concluding, yes, Chadha, merited suspension of deportation.
And then on the other hand, you have this vote in the House, apparently, there was no recorded debate, no recording of the votes, and no explanation for the override of the administrative decision. And that seems a mismatch of kind of bureaucratic rationality that I'm sure troubled some of the justices. And so each delegation is probably different.
But I think there is a danger that just delegating absolute voting power to execute a law to a piece of Congress is more likely to increase kind of arbitrariness of government decision making. And I think that Chadha case is particularly vivid illustration of that, whereas I think at least the dangers are lower. And with some of the delegations outside of Congress.
Will Baude: I left this point, although there's something really counterintuitive about it, if you think about it, right? Because I feel we're now in an era where we're constantly hearing these attacks on the administrative state, or on bureaucrats as being unaccountable and undemocratic, and all those things. And here, what is the House of Representatives, but kind of democratic, a bunch of people who all got elected.
So it seems weird, delicious, to say that this sort of unelected bureaucrat constrained only by a kind of statutory code is somehow better, more positions to make these decisions about liberty than people elected by the people.
Curt Bradley: And obviously, what are some of the aspects of this particular case that bothers people probably relate to the fact that there's a kind of an adjudicatory aspect to it determining an individual's status sound somewhat adjudicatory. And when you think of it that way, it's easier to think Congress is probably not as well positioned to be an adjudicator case specific way as compared to even a judicial institution within the executive branch.
And, in fact, Justice Powell, who consistent with I think his predilections in general was did seek to try to have a narrower ground for disposing this case. And he actually concurred on the ground, that putting aside the bigger issues here, but we really have as a problem of Congress trying to reserve itself kind of an adjudicatory function, which is probably not well suited, and certainly not in this particular case.
But even as to the bigger points, there was actually a pretty robust literature, it's sort of been forgotten by some modern scholars about the Leslie veto. But there was a lot of scholarship prior to Chadha, that tried to figure out what those veto provisions did to the operations of government. And a lot, some of that literature found that it mainly just increased sort of lobbying interest, special interest groups having just more access points.
We're not talking about public deliberation, democratic accountability, we're just talking more ability to influence maybe smaller numbers of members of Congress than you would have to for a piece of legislation, because you don't actually have to get your position all the way through the legislative process. Now, to be sure, there's a lot of literature on the danger of capture of administrative agencies and influence that goes towards the executive, as well.
So one would have to think about that as a potential problem. But we've sort of been attuned to that problem for a long time. And there, again, is at least more overlay of legal provisions that are aimed to try to insulate certain agencies, or get their decisions reviewed, to see whether they can be sustained. And we just haven't applied those to Congress. Because for legislation, we think the democratic process is fully worked through.
And then actually, typically, the presidency has had to agree, as well. And these veto provisions take some of that out, and I think increase really more opportunities for side deals and backroom deals, than enhancing any kind of democratic participation. One of the things I learned that I had not know, maybe other people do know, one of the people who wrote about Chadha right after it was decided was a Senator Joseph Biden, at the time, he wrote a law review article about legislative vetoes.
And even though he was in Congress, he said, for the most part, Chadha, is probably good for Congress, because it takes some of the lobbying interests off our back is what he says in this law review article. And he did say I should know, just to be fair, that he thought it might be a problem in foreign affairs, an area that I studied quite a bit, he thought there might still be some need for some additional checks, and war powers and the like.
But he said for the administrative agency side of this, he thought it was basically just a good thing for Congress to get rid of the vetoes, he thought it would actually cause Congress to be more engaged with policymaking and less subject, at least to a degree to special interest, influence. And that's an excellent perspective for somebody in the Congress. I have no idea what his views are today. But it shows that it may not be obvious, that just because it was happening within Congress, that it was necessarily kind of good governance, or democratic.
Will Baude: This is great. So I think one of the conventional ways of approaching the case has its the majority is this triumph of formalism, although as we've talked about the formalist arguments not as simple as the majority. And then the dissent by this is why this, of course, is very powerful functionalist critique of what the majority is doing.
And so it's often seen as this is the triumph of formals of the expense of functionalism. Here, Congress had this really important tool to rein in the overly venturous executive branch. Now we've taken it away from them. And so of course, we get all to excessively the power we have today. So it's interesting, that's not true.
Curt Bradley: Exactly. So, to the extent I have a bit of a contrarian take on it, of course there's a wide variety of views on Chadha, and on veto mechanism, but one of the narratives is the one that you've described, it's often taught as a very formalist opinion, repudiating a functionally desirable mechanism that had developed between the two branches since the 1930s.
And for formal reasons, disallowing this useful device. This is certainly the gist of justice White's dissent, which is with the rise of the administrative state, Congress has had to work out new ways of keeping controls over policymaking, as a practical matter. It has to delegate a lot of authority in our modern world to the executive. And this legislative veto device is a way of keeping some check on that. And that the court majority use formal arguments to kind of disallow this.
And if you read the majority opinion, there's a flavor of that to be sure. They do say almost gratuitously things like, just because this might be efficient and useful for governance doesn't make it constitutional. It sounds like a resistance to those functional. Having said that, there's actually a fair amount of functional reasoning within the decision, if you just look closely at what they're saying.
So they say that the house is action is legislative, but how do they know it's legislative why call it legislative as opposed to executive or something else, they could roughly try to box them in to make them call it one of those two things. And they decided to call it legislative because of its effect. The majority says, it's not a bill. So it's actually not covered by the direct language of Article One, Section seven, but they said, in applying the Constitution, we also consider the effect of what's happening.
And construing Article One, they said we consider what its constitutional functions are. And they actually use the word functions. Interestingly enough in thinking about how to construe the text of the Constitution. This is not purely wooden kind of application of language. It's, I would call it more of a structural reason that article one set out a process for certain kinds of reasons or functions, and the effect of this particular act should be covered by the purpose of that particular provision.
That doesn't sound purely formalist to me it sounds structural and functional, to an extent. And, indeed, they go on to say this is legislative and character because it, quote, had the purpose and effect of altering legal rights, duties and relations. So really looking at what happens, and not just what one might call technicalities. On the other hand, Justice White, famously functionalist in his dissent, and it is framed that way, he says it will undermine some kind of good checks and balances, his decision would undermine good checks and balances between the two branches.
But as other people have actually noted, it doesn't have any empirical evidence for his argument that either the vetoes were good for governance, or that the loss of them will actually cause significant problems in relationships between the, is really just intuition. It's functionalism, but mainly just based on intuition of the situation.
So I think it's actually too simplistic to call the majority entirely foremost, I don't think that it is, and I think White's functionalism at least probably needed better support, rather than just appealing generically, to some kind of idea of balance between the branches.
But the bigger issue is, even if the majority is formless, whether you like that or you don't like that, I do think there's a pretty good case to be made that legislative vetoes overall, are functionally problematic anyway, that is, you could rewrite the opinion, if you wanted to decent scholarship, very good scholarship prior to that by [inaudible 00:22:54], David Martin at UVA that actually just went through the functional attributes of legislative vetoes prior to Chadha.
And they actually did studies, they interviewed congressional staffers had case studies about how it worked under various statutes. At least their findings were that it wasn't so positive. Some of the articles suggested maybe just cause Congress had delegate too much for one thing to the executive on this kind of false hope. They could always rein it back in later, which, in fact, they often didn't rein it back in with these veto provisions.
And as I mentioned, it seemed to just multiply the opportunities for special interest influence during the deliberative process. And it also, as I've noted, increase the arbitrariness of at least some kinds of decisions that emanated out of the government by shifting them out of the administrative process. These arguments on the other side that I don't think Justice White really engages with, and just kind of accepting the desirability of the veto mechanisms, that majority was clearly aware of those arguments, they actually refer to the articles in passing that made those arguments.
They also highlight for good measure, just the facts that showed the kind of arbitrariness of what happened to Chadha. They note there was no recorded vote, no debate in the House, etc. And it's clear they are at least taking into account who I don't we don't know how much it influenced particular justices, that it wasn't obvious that these veto mechanisms were necessarily good for governance.
So maybe this is contrarian is that Chadha can be defended on functional grounds, in addition to whatever formal arguments, the court invoked about provisions of Article One. And I at least think that's a harder case that Justice White took on in his dissent.
Will Baude: And what keeps coming up sort of thinking about the sympathetic or unsympathetic way, in a way the context of Chadha, the immigration question, the sympathetic character, the lack of recorded vote, the fact that the single house are part of a single house, so one thing it's not obvious from the opinion is that it's just generalize to all legislative vetoes, what about both houses of Congress acting together to veto, use of force use of the war powers resolution, or the declaration of a national emergency? So do you think those should be different, are they all the same?
Curt Bradley: That's a good question. And I think Powell, among others on the court was worried about saying more than they had to decide this case, I think there are a lot of people who had would have had concerns about the veto in this particular setting and might have had fewer concerns and other settings.
In some ways, it seems less problematic in terms of some of the function concerns to have a two House veto, as opposed to one the concerns about extra opportunities for special interest, for example, or another concern that comes up for one house vetoes is just seems to add another way for a party not in the White House, to block executive action. And if anything, this partisan gridlock problem has grown much more severe since 1983.
But the two House veto probably poses that to a lesser extent, one problem there is you still would have to write an opinion, that grounds distinction and constitutional law somehow, if you're going to invalidate one and not the other one house versus two house, and one would need to link that up to something beyond just one of those devices seems to be less functionally problematic than the other, I think most people would agree with that.
And I don't think the court saw a way to rescue some of these veto provisions and not others. Kind of strangely, Justice White has said that a two House veto is more constitutionally problematic than a one house one, which has always kind of surprised me. He had this very complicated theory, to try to avoid the argument that this was new legislation in the House, he had a complicated theory, that the executive suspension of deportation was just a proposal for new legislation.
And that if neither house objected, in effect, you got all two branches on board, kind as if this you passed a new statute that was basically his theory. It's a weird theory, because you normally think you'd actually have to do all those things, as opposed to just silence being the same as having two houses having voted, but even putting aside the weirdness it what it meant for him was that if two houses had to object that would just kind of distort the theory, because under his theory, any house could stop legislation.
And if this is a proposal for legislation, one house veto makes more sense, because then that shows effectively that neither house objected. You kind of have something like new legislation. I'm not persuaded by that particular theory. That's kind of an imagined view of legislation, but it just shows you that some of these categories can can distort our intuitions about which of these are better, or worse from a constitutional law standpoint.
The other thing I'll note about two House vetoes so there have been a lot of consternation about Chadha, and the Leslie veto recently, during the last administration, in the Trump administration. I think the debate it sort of quieted down, but a lot of people wrote during the Trump administration that I think it overstated ways, in my view, that Chadha is one of the things that has really caused harm to our separation of powers. It's contributed significantly to the growth of executive authority.
And they were really perturbed about this regime under Trump, because there were a few instances under Trump, in which he did block even members of his own party in ways that look you might have gotten a two house veto. And if you think that maybe is less problematic, there might have been a few instances in which two houses of Congress, if they didn't have to have a new statute could have stopped Trump from building part of the border wall are things just declaring other kinds of emergencies and the like.
And I think that motivated people to say, maybe Chadha, was wrong, this sided, but I think they're really thinking it'd be nice to have the two House veto a possibility for a populist president or something like Trump. In reality, I don't think that made much of a difference, and even in the Trump administration, if we had these two House veto provision saying war powers, we still have it actually war powers. There's still a two House veto provision in the War Powers Act hasn't been removed.
And some people have said it evades Chadha, for some complicated reasons that I won't go through at the moment, but have two houses of Congress ever voted it out? No, that was true before. Chadha, has been true in the many years after tried almost 40 years. There were two House veto provisions way back since the 50s, Of War Powers, and we use the force resolution were they ever used? No. Even during Vietnam was quite an unpopular war. They had it to house veto provision there. Did they use it? No.
They actually finally resorted to regular legislation near the end of the Vietnam War. It just didn't do a lot of work, even when it's a two House variety. I think one house is more likely to do work, but is also more likely to be functionally problematic. So my other kind of counter contrarian view about Chadha, is I just don't think it made that much of a difference. It's a decision that's much talked about, the fact that it seems it's in effectively struck down hundreds of provisions makes it seem quite dramatic.
But in my study, I just don't think the legislative veto was doing a tremendous amount of work. Prior to Chadha, particularly for in the areas people now care about, like war powers and emergency declarations, it was never used, it was actually never used, and actually never threatened to be used before Chadha. And if you just look at the war issues and debates we've had since then I don't see basically any times it would have been used effectively in the 40, or so years since Chadha.
So my own view is Chadha, is probably not as significant as people think it was, in terms of its impact on congressional executive relations. And some other areas people always forget about this. And some other areas, Congress did respond to Chadha, not always in ways that favor the executive, the two areas where Congress actually did use the veto provisions kind of frequently other than immigration, were executive reorganization proposals.
That's where it started in the 30s, when they first had one of these and implemented deferral of spending. And they had allow that to happen in the executive over time with some veto bill and they use the veto before Chadha. Well, Chadha, comes along, so what do they do, they just took back the power. So Congress actually just changed those statutes to say you have to have a new statute.
Now, if you want to defer funds under certain conditions, or you want to reorganize the executive branch, they actually just took back the authority to the legislature, which is very different from the usual story of Chadha, that it just meant everything went to the executive branch, and in some other areas, they didn't take back. But they weren't using the veto really anyway, and I'm not convinced they would have in the subsequent years.
One other kind of really just remarkable thing about what happened after Chadha, and other people have commented on this. The vast majority of legislative veto provisions in the US Code have been enacted by Congress after 1983. They've been enacted after Chadha, a book came out a few years ago that estimated 80%, of all of the legislative veto we've ever had, had been enacted after Chadha, just remarkable this momentous separation of powers decision.
Most people I think, correctly read as disallowing all legislative veto provisions, certainly didn't stop the flow of them into the code. Now, most of those are in the spending area, the appropriations area, where Congress has said that in order to make certain kinds of spending decisions, you actually have to get approval of committee, certain appropriations committees that probably violates Chadha, because they're basically saying this committee gets to make some kind of new decision that had been made prior.
And that doesn't seem to matter, because the administrative agencies that are subject to these new veto provisions, they have all the incentive in the world to work with committees who are going to have to fund them next year. And so they actually just work out these veto things, apparently, informally. No one thinks you need to take the agencies to court and test out whether Chadha, applies or doesn't apply it.
There's just a whole veto regime that apparently works informally, post Chadha, and allows those appropriations committees tremendous amount of influence, overspending in the administrative agencies, all maybe without any constitutional law attached to it, and certainly no judicial review attached to it.
So it's kind of a remarkable example of how a lot of separation of powers really isn't determined by the Supreme Court, a lot of how Congress and the executive are going to interact, what kind of leverage Congress has over agencies is largely independent of what the Supreme Court said, and this constitutional law decision.
Will Baude: So the stories about Congress pulling back the authority after Chadha, actually makes me wonder about something you mentioned very early on severability part of this. Not just because this is the thing I'm currently obsessed with. So there is something weird, isn't there about, we have a world where Congress gives the executive some authority with some strings attached?
Curt Bradley: Yes.
Will Baude: The Supreme Court jumps in and tells Congress actually you can't patch the strings, but guess what the executive branch gets to keep the authority. And I guess we even know, empirically, right, that in the areas where Congress with the strings actually mattered. Congress was not happy with that deal, and would have preferred not because the authority then took it back. So there's something fishy going on there?
Curt Bradley: So there have been critiques maybe well taken about severability analysis and shot, it's pretty light. They basically make two points. One, is there was a general severability provision in the immigration statute. It didn't specifically refer to this particular scenario, but it just generally said that if provisions were found unconstitutional, that they should be severed, and they do apply in Chadha, kind of a general presumption in favor of severability to try to preserve the rest of the statute.
You can reasonably question whether this that presumption adequately captures what Congress really wanted. It's, I find it hard to say there are a few instances where that's clearly not what they wanted, and they took it back, now interestingly, they managed to take it back, which isn't. So usually the complaint I hear here is they wouldn't have wanted this deal where they delegate, but they don't have the veto. But they're kind of stuck is the claim, because after Chadha, they'd have to have a new veto proof statute, to kind of ratchet it back.
Well, those examples where they did take it back, and they didn't actually have to overcome a veto, they just managed to do it. Interestingly. And the other thing I'll say is they did amend a number of the other statutes, sometimes to narrow the scope of the delegation, often to do something else, they just added a different check, which is often called report and wait.
So they vastly increase the number of report and wait provisions, which basically require the executive before they act to inform Congress that they're going to do something, give 60 days or some period of time to Congress, under you often fast track procedures, that means that you can get to the floor to see whether Congress really does object or not. Now, in theory, maybe still have to enact a statute over maybe even the President's veto, but it still gives Congress kind of an expedited way of responding.
And the point is they went in and they amended a lot of these statutes that these did not just stay in the books completely untouched for 40 years after Chadha, was some kind of deal that Congress would have never made. So I'm not entirely convinced that Congress only delegated because it thought it had this meaningful check, it lost the check, and then it was left holding the bag because it seemed to be able to reclaim some of it were cared about it.
It amended in other ways, a lot of the other statutes that had that used to have these veto provisions. And then the final thing I'll say is one of the biggest arguments that Justice White, makes that I actually thought to some extent was true, is he claimed there was a Hobson's Choice famous quote from Justice White's to state, that in our modern administrative state, Congress has this problematic choice, either don't delegate very broadly and micromanage all of the affairs of state, or give it all and lose control over policymaking if you don't have a veto, and he called a Hobson's choice under the theory, that's not really much of a choice, they're just going to have to delegate in order to because they just can't run the government themselves.
There's some truth to that, I think Congress probably has to delegate a lot to have our government work and domestic and foreign affairs. But if that's true, it's kind of less of a deal. That is to say, it's not like Congress was thinking, I'll just hold on to most of this unless I have the veto. In fact, I think Justice White, is probably right, they do have to delegate a lot.
And they want to delegate a lot. They don't want all of this coming back to them. And then the question just becomes not so much Congress holding the bag, but what kind of checks are available, and would be desirable in the operations of governments. And you can have debates, whether Leslie veto ought to be one of those. And if it's not, are there other mechanisms that are useful and serve some of these checking function, some of the political scientists who have studied this, they've done a lot more work on the empiric.
I think then most of the legal scholars have actually found that these other mechanisms, rapport and weight, some of the informal veto structures, as far as they can tell, allow Congress a lot of the same and maybe even sometimes more leverage and policy oversight than they would have had, even if Chadha, had come out the other way. And I don't know for sure whether that's right. But I don't think the legal scholars have disproven that I don't think there's been a clear empirical case that Congress, in fact, has suffered significantly in terms of its ability to have leverage with the executive, because of this particular decisions.
I think, kind of like Justice White, that's just an intuition about this, just because this had appeared in so many different provisions. But it's not clear from the empiric that's, in fact, the case. And as I said, Senator Biden, actually was of the view that Congress might do a somewhat better job of oversight, interestingly, without having the crutch, which he thought was not a very useful one in many respects of the veto mechanism, which is interesting for a sitting senator to have that perspective.
Will Baude: So can I try out a slightly more cynical response to Justice White, I don't know beside the zone. So yes, Congress has to delegate practically has to delegate particular branch, they don't want to delegate with no oversight. And after Chadha, they can't retain the oversight role. So what can they do for oversight? Well, look, they have the Administrative Procedure Act and sort of the growth of administrative law, which says that they should actually just put judges in charge of oversight.
So the court is really saying is not a Hobson's choice. It's saying, you want to delegate you have to delegate, but you want it to be in charge of overseeing the delegation. And you can't do that. You've got to put us in charge. So conveniently, the Article Three courts erect the [inaudible 00:39:42] choice if the Article Three courts win, because Congress can as long as it has judicial review, that'll work and then the courts get even war power of the administrative state. And now it seems they're overseeing every rulemaking on any major topic.
Curt Bradley: I think that said, probably has some merit, and probably explains some other decisions I can think of from the Supreme Court as well, having said that, it's probably has less by here than some other examples that I can think of, it is true, I think the modern Supreme Court has kind of a judicial supremacy mindset and many of its opinions in general, other than the [inaudible 00:40:19] case, from in recent years that a political question doctrine has not had a vibrant life in part, I think, because the court does tend to want to keep itself as at least a possible actor for just about everything.
I think it's a less bite here. And the reason is, we're just talking about mechanisms for the most part that would have come in only occasionally and periodically, not, this was not an active mechanism in the legislative branch anyway, at that time, and I think would not have been significantly active sense. So most of the action, even if Chadha, come out the other way is still going to happen in the executive and in the agencies.
And then judicial review, as you mentioned, and of course, the Administrative Procedure Act and the judicial review elements were all largely in place anyway. So I don't think that's a heavy explanation for it. It might be obviously that as between the fact that this case had a kind of an adjudicated character to it, which clearly bothered Justice Palin, some of the justices might have triggered what you're describing, which is, we have at least administrative law judges operating on this subject to Article three judges, potentially, versus these legislators.
And I'm sure the Supreme Court had a view about which one of those two might do a better job on these particular issues. But I'm not sure that this Chadha, decision itself shifted a lot of work away from Congress over to the course. That'd be my guess anyway. Like I said, nowadays, if you look at the criticisms of Chadha, during the Trump administration, it's primarily foreign affairs and emergency declarations areas.
And even most of those critics note that those veto provisions if they were enforceable, would be very occasional kinds of things, and probably ones were in war powers. For example, the courts have not tried to intervene at all, as far as in the modern era. This is not an area in which the courts have, that's an area where they just try to carve themselves out a role instead of having Congress see that role.
So I don't see it as a huge explanation for the Chadha, decision that will say you had mentioned at the beginning that the court kinda describes it as kind of following almost axiomatically from the text of the Constitution, this invalidity of legislative views. I think they viewed it as a difficult case. In some ways. I read apparently, Linda Greenhouse, the Supreme Court journalist looked at Justice Blackmun's papers, including about this case, and apparently Justice Blackmun thought it was quite clear and straightforward.
It clearly violated constitution. Apparently, Chief Justice Burger, had all sorts of anxiety about the case, even though he ends up writing the majority opinion. Turns out, apparently an interesting story there because the case got reargued for the set in the second term with apparently no particular good reason for it to be reargued, if you listen to the second argument, they've already asked basically, most of their questions.
It's nothing particularly new has happened. And then the Greenhouse, reports based on her study of the Blackmun papers, that Burger, was just kind of awed by the significance of maybe striking down all of these provisions. Blackmun, I think was ready to go and probably was willing to write an opinion fairly quickly doing that it looked like there was a majority right from the beginning to strike down the veto. But Burger, apparently took his time and kind of vacillated about what to do.
And Powell was making some noise internally about maybe there's a narrow way to deal with this. And Greenhouse, story is Burger, just never assigns the opinion by the end of the term. It just never been assigned. And apparently people are waiting. And apparently people go to the court waiting for the end of term opinions, that Chadha, case should be out. It just never comes out.
And in fact, Burger, announces to the justices, we're relisting for next term. And apparently according to the papers, Blackmun, was not entirely pleased to hear that. And Burger said, he sensed there was some consensus to just it reargued, which was not entirely clear there was that but it did show, certainly on Burger's, part at least a sense that even if he thought the text was reasonably clear, that he was struggling with the case, I think the other rumors were that he really decided late in the day, he wanted to write the opinion.
And that was a kind of a late in the day decision and needed more time, maybe to do it. So I think the court took it quite seriously. It's not a normal decision necessarily, you'd have every day to potentially strike down laws that, to some extent, have been around for 40, 50 years. And I think the court did think about that and it wasn't just a pure judicial supremacist kind of thought, I think they agonize a bit.
Will Baude: I've torn so I'm glad this is the court taking seriously when it strikes down a lot of statutes, take that seriously. Help quite know that a call just failed to sign the opinion for a turn, and then relisting it, because you ran at a time, when that's taking, it's, I don't know if one of my students in Seminar said I took this paper so seriously, I just didn't start writing it. And now it's due, just awed by the project.
Curt Bradley: Greenhouse is not complimentary about Burgers, particular reaction there and describes the kind of a lack of leadership part of being the chief justice or any justices you need to make the hard decisions. And apparently, Burger had not voted at conference. I'm not sure how unusual that was initially, although clearly privately, was leaning towards it being unconstitutional, and just had difficulty coming around, to get his head around that.
And I agree, it's I don't it's not a compliment. The way he translated of the situation into delay, which is not necessarily good for anybody if the government, or for the litigants that but the point at this point, maybe just being that I think he and I think the other justices took it seriously as something that was not just, the court should have the last word, or something like that.
There are some things about their analysis that in my other writings I have complained about. I thought they were a little too Cavalier to discount all of the governmental practice that had accumulated since the 1930s. I would have liked to see a little bit more weight having given to that, I think there are answers to that-
Will Baude: I think they can say, in fact, they're using it very much except in a few areas.
Curt Bradley: Exactly. And they could say, well, I would have said if I were giving more weight to it, than they did in the majority opinion, as it's actually, it's less significant practice than it might appear. And also significantly, it's not one of these arrangements, where both branches had kind of agreed this is a really important useful development in the operations of government, let's make it work together.
It was not a cooperative Congress executive project, at least, for the most part, there were times the executive acquiesced. But almost every attorney general since the 30s, and many presidents had publicly said, I just don't think this is constitutional. Obviously, the you have this complication that they often sign them into law, but as the Office of Legal Counsel has said, just because the President signs something into law, basically, over objections does not mean they get to bind all future presidents to the constitutionality of it.
And the other thing I'll note is, a vast number of these legal provisions were not from the 1930s. They were not these long standing reorganization provisions. They were put in right at the end of Vietnam, during Watergate or right afterwards, and where there was a lot of debate, and the executive was clearly opposed to their legitimacy, unconstitutionality.
And so it was just at a height of contestation between the branches, not some kind of nice, cooperative arrangement that the court just disregarded. I think they could have made more of that if they wanted to, in the opinion to say, there's been actually sharp conflict, both on the constitutional law side and also over the usefulness, about this mechanism.
And it's really changed over time and rapidly proliferate also moved into very sensitive areas like war powers and other areas that had not started out that way. And I think that reduces the argument of deferring to some kind of long standing separation of powers arrangement that the branches have managed to work together. And that has worked successfully.
I wish they had said more of that, because I do think there are such things in the world that suggest the court ought to step back. And they I don't think the Supreme Court has to decide everything. And if the branches have managed to work something out reasonably well over time, I think there's an argument for the court potentially pulling back, but I think they had answers here. They probably could have made better.
Will Baude: I was going to say, so maybe this proves that Burger, didn't assign the case to the right, but [inaudible 00:48:45] be grateful he signed the case at all. It's been amazing. I think we are running out of time, so we should close our episode here. But I know I learned a lot about the Constitution, although, I'm not sure whether the Constitution came out of this conversation the winner or not?
Curt Bradley: I really enjoyed it. Thank you so much, Will.
Will Baude: So thank you for joining us today, for updates on future episodes, follow us on Twitter at UChicagoConLaw, make sure to subscribe, rate and comment wherever you get your podcasts, If you need more go to SCOTUS talk checkout Divided Argument an unscheduled, unpredictable podcast hosted by me at Dan Epps. Thank you all.