Text 9* the intent of the Framers versus the modern American presidency

The intent of the Framers should be addressed at every stage of the studies in Constitutional law. Arguments for and against the legislative veto, summarized in the accompanying selection, illustrate their intent versus reality. Legislative vetoes are provisions in laws enacted by Congress that delegate provisional or conditional authority to the president or the executive (or judicial) branch. Congress, by concurrent resolution not subject to presidential veto, can thereby veto executive decisions. From 1952—2000 over 250 separate veto provisions existed in legislation. The Framers had not debated a legislative veto power since it made little sense that Congress should negate legislation it had already initiated as the legislative branch. But as the modern institutionalized presidency expanded, the legislative process diverged from the Framers' plan. The legislative veto should be seen as a product of changes in the presidency.

The Supreme Court declared the legislative veto unconstitutional in Immigration and Naturalization Services v. Chadhsi. In the majority opinion written by Chief Justice Burger, the Court focused on the intent of the Framers. A substantial part or the decision quoted directly from the records of the Constitutional Convention. In the Court opinion the legislative veto was unconstitutional because.

The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.

Although not "hermetically" sealed from one another, the powers delegated to the three branches are functionally identifiable. When any branch acts, it is presumptively exercising the power the Constitution has delegated to it.... The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decision of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

In dissent Justice Byron White argued that the Court was inappropriately applying the solution of 1787 to the world of 1984 — a world in which the powers exercised by the president went far beyond those enumerated in Article II. The legislative veto was not the sword that Madison and Hamilton feared Congress would one day use to tyrannize the other branches and to aggrandize itself. "Rather, the veto has been a means of defense," wrote Justice White, "a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the nation's lawmaker": We should not find the lack of specific constitutional authorization of the legislative veto surprising, and I would not infer disapproval of the mechanism from its absence. From the summer of 1 787 to the present the government of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure their role as the nation's lawmakers. But the wisdom of the Framers was to anticipate that the nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles... the legislative veto device here — and in many other settings — is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies, both executive and independent, as they engage in exercising authority delegated by Congress.

The legislative veto is but one of several issues that requires the attention of modern constitutional thinkers.

President Reagan has requested regularly that he be given an item-veto authority. In the effort to achieve fiscal responsibility over the federal budget, an item veto would enable the president to reject specific items within a piece of legislation rather than veto the bill entirely. In recommending the item veto, Reagan added his name to a long list of predecessors dating back to Grant. In Reagan's view, the intent of the Framers in providing the president a qualified veto power has been frustrated to a large extent by the development of the congressional practice of combining various items in a single appropriations bill. The Framers undoubtedly anticipated that Congress would pass separate appropriations bills for discrete programs or activities, and that the president would be able to review each program. Until about the time of the Civil War, this was the practice of Congress. Since that time, however, Congress has increasingly combined various items of appropriation in omnibus appropriation bills. This makes it difficult for the president to discharge the responsibility vested in him by the Framers, because a president cannot consider the individual items of the appropriations separately, but must either veto or approve the package as a whole. The president is thus prevented from using the veto as the Framers intended, "to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertance, or design."

It is for this reason that we have proposed restoring the Framers' original design through constitutional amendment granting the president line-item veto authority. The constitutions of no fewer than forty-three states grant some authority to the governor, and the experience at the state level suggests a line-item veto would work well at the federal level."

Would enactment of an item veto actually restore the intent of the Framers? "It is fair to say," wrote Judith Best, "the veto power created by the Founders has been displaced and debilitated, and that some form of item veto would be viewed by the Founders as necessary to reinstate the veto power they originally envisioned.... It is reasonable to assert that the Founders would not find the item veto to be a dangerous innovation but rather a rehabilitation of an original and essential check and balance."

Moreover, an item veto reinforces the principle of checks and balances by restoring the original intent of the veto itself.

The Framers offered their country an experiment in republican government. That certain issues and contingencies were unanticipated there can be no doubt. Recognizing this possibility, the Framers included an amendment process. But as these debates on both a legislative veto and a line-item veto reveal, the structure bequeathed by the Framers is often ambiguous with respect to contemporary needs. If the Framers could be called back to assess their blueprint and suggest revisions and amendments, what do you believe they would say, either as a group or individually? In formulating your response, don't worry about what your professor might think. Most scholars have already incurred too much of a stake in the answer. What do you believe the Framers would say about the relationship of their blueprint to expectations for the president? Does this arrangement tend to foster constitutional insolvency? Keep in mind that the Framers placed the necessity for checks and balances ahead of the need for cooperation between the branches. Moreover, to the Framers the very notion of presidential leadership of the political system was anathema to the preservation of liberty and balances between branches.

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