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That Is What We Said, but This Is What We Meant: Putting the Meaning Back into Use-of-Force Legislation
By Daniel George
Consider: The President takes the country to war following a devastating terrorist attack on U.S. soil.  Congress quickly grows frustrated with the progress of the war and the perceived threats to civil liberties arising out of the acts that the President is taking pursuant to the power granted to him to respond to the attack.  As a result, many in Congress want to amend the original grant of authority to make it clear that the President does not have the power to conduct military tribunals or warrantless wiretapping programs.  But Congress is closely divided—fifty-two Democrats to forty-eight Republicans—and any bill amending the original grant of authority will surely face an Article I presidential veto.

Sliding the provision into a spending bill could work, but the President might veto that as well, both defeating Congress’s attempt to rein in the President and preventing money from getting to the troops, who are understaffed, underfunded, and overworked.  Should Congress act knowing that the bill will be vetoed, or should it pull the bill from consideration and move on to other legislation, ending a highly publicized and important public debate on contentious issues?

The United States Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer set forth the framework by which the constitutionality of presidential action is to be measured.  A critical question in any Youngstown analysis is whether Congress, explicitly or implicitly, supported the actions of the President.  In analyzing this question, courts have typically looked at existing laws enacted by Congress and signed by the President on the subject matter related to the relevant act.  Less frequently, courts look at legislative history, or the lack thereof, to determine the will of Congresses, past and present.  Of course, Congress, together with the President, can generally authorize or reject an executive act or program via legislation.

This Note argues that, for both separation of powers and, to a limited extent, public policy reasons, when determining the will of Congress in a Youngstown analysis, a court should look to bills that sought to clarify an existing, vague grant of presidential power, but that, after passing both houses of Congress, were vetoed by the President.  These bills would not carry the force of law, in that they would not legally preclude the President from acting, but would instead be a tool for courts to use in scrutinizing the actions of the President.  Such bills are likely a more reliable source in determining congressional will than both older existing statutes and legislative history because of the process that a bill must go through to pass through both chambers.  Though this proposal sounds like an impermissible legislative veto, as proscribed by INS v. Chadha, it is not because the bills are tools for a court, not binding directives to the President.  Part I of this Note explains the implications of the Youngstown Supreme Court case.  It also analyzes other cases where courts have relied on old statutes, legislative history, or silence to determine the will of Congress.  Part II establishes the problem inherent in vague grants of power by analyzing the recent perceived abuses of presidential authority in the War on Terror.  It goes on to highlight some instances of congressional acquiescence to presidential veto threats, illustrating how congressional will can be overcome by unilateral presidential action.  Additionally, Part II briefly mentions a specific instance of after-the-fact legislative history-making to show the dangers of relying on a bill’s history to determine Youngstown constitutionality.  Part III argues that courts should look to bills passed by both houses but vetoed by the President when seeking to determine congressional will.  Part IV addresses alternatives and explains why they are insufficiently effective in this context.  It also anticipates potential problems with the proposal, including concerns about the Presentment Clause and the legislative veto.  Finally, Part V argues that there are inherent safeguards in the proposal that prevent it from being misused, and that it aims to reinvigorate the Founders’ notions of separation of powers.

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About This Content
Keywords: George, President, Youngstown, Dames & Moore, Congress, War on Terror
Content Type: Note
Media Type: Print
Author: Daniel George
Publish Date: June 2010
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